PTO, FMLA and ADA Leave – Oh My!
Blog Submitted by Kelley Frake. Published on March 28, 2024.
For employers and employees with disabilities, the question of leave can be a tricky one. So, let’s talk about it.
Leave as an ADA Accommodation
Under the ADA, employees with disabilities can request changes to the work environment or work policies as a reasonable accommodation. Requests can include many things like a schedule change, closed captioning in meetings, and even leave. Accommodations like unpaid leave can help employees with disabilities manage their medical needs and maintain employment. Here are some disability-related reasons why an employee might request leave as an accommodation:
- An employee requests intermittent leave to attend cancer treatments
- An employee requests extended leave to recover after surgery
- An employee starts a new medication and requests leave to adjust to the effects
Employees with disabilities can make an accommodation request at any time, but there are limits to what is considered “reasonable” under the ADA. Employers are not required to grant a request that would result in an undue hardship. They are also not required to provide the employee’s preferred accommodation if an alternative would be effective. For example, an employer may provide an accommodation that allows an employee to remain on the job—such as reassigning marginal job functions or providing a temporary transfer—as long as the accommodation is effective and meets the disability-related need.
If a reasonable accommodation cannot be provided in the employee’s current position and they cannot perform essential functions of their job, an employer is required to consider reassignment as a last resort before termination.
The Family and Medical Leave Act (FMLA) vs. the Americans with Disabilities Act (ADA)
While both FMLA and ADA can be used to provide leave to an employee with a disability, there are some key differences:
- LEAVE USE: Unlike the ADA, FMLA leave can be used for other reasons besides disability. For example, normal pregnancy and caring for a family member can be covered under the FMLA but not the ADA.
- AMOUNT: FMLA provides a set amount of leave – 12 weeks over a 12-month period – while the amount of leave available under the ADA is not specified. Under the ADA, the amount of leave that is reasonable will be based on the disability-related need and whether the amount would cause an undue hardship for the employer. Indefinite leave is not considered reasonable under the ADA.
- COVERAGE: The ADA applies to private employers with 15 or more employees*, all state or local government employers with 1 or more employees, and applicants or employees who meet the ADA definition of disability. FMLA has different eligibility requirements for employers and employees.
- The FMLA has very specific criteria for coverage. Highlights include but are not limited to:
- Must work for a covered employer;
- Must have worked 1,250 hours during the 12 months prior to the start of leave; (special hours of service rules apply to airline flight crew members)
- Must work at a location where the employer has 50 or more employees within 75 miles; and
- BENEFITS: Under FMLA, employee benefits (such as health insurance coverage) must be continued during the leave period. Under the ADA, an employer must continue an employee's benefits during their leave period only if it does so for other employees in a similar leave status.
*Important Note: Many states have passed their own disability civil rights laws which can provide greater coverage and protections than the ADA. For example, some state disability rights laws apply to employers with only 1 or more employees.
Paid Time Off (PTO) and Other Employer-Provided Leave
Employers that provide PTO or other leave benefits (paid or unpaid) must provide equal access to these benefits for employees with disabilities as those without disabilities. If an employer receives a request for leave due to a disability and the leave falls within the employer's existing leave policy (sick leave, vacation time, etc.), it should treat the employee the same as other employees who request leave for a non-disability-related reason.
However, employers may need to make reasonable modifications to their leave policies under the ADA to allow an employee to use their employer-provided leave for a disability-related reason. For example, if limits are placed on paid vacation time, these limits may need to be adjusted, when reasonable, for the purpose of meeting a disability-related need.
Employers do not have to provide more paid leave to employees with disabilities than what they provide to employees without disabilities. This is where additional leave under the FMLA and ADA can be helpful.
Which Leave Applies When?
Each disability-related request for leave will need to be evaluated on a case-by-case basis, however, the order in which these leave types are considered tends to follow a similar pattern:
- Employer-Provided Leave
- FMLA and/or State or Local Leave Programs
- Leave as an ADA Accommodation
Employers can have their employees with disabilities use PTO or other employer-provided leave benefits first before looking at additional leave options.
If an employee exhausts all of their employer-provided leave, FMLA can be used to meet the employee’s disability-related need if they are eligible.*
Once FMLA is used up (or if an employee is not eligible), then the employer would be required to consider unpaid leave under the ADA as a last resort.
Sometimes, an employer may need to jump immediately to leave under the ADA if other options are not available. For example, a new employee with a disability may not have worked long enough to accrue PTO or qualify for FMLA. They may, however, qualify for unpaid leave as a reasonable accommodation under the ADA.
*Important Note: Some states and local governments have passed laws that provide additional leave protections or programs for employees. These laws should also be reviewed and considered before moving to unpaid leave under the ADA as an accommodation.
What About Short and Long-Term Disability?
“Short-term and long-term disability” are concepts that confuse many callers who contact us wanting to know how they relate to the ADA. The short answer is, they don’t.
The ADA is a civil rights law that provides protection from disability discrimination. Short and long-term disability are types of insurance policies that can replace income while an employee is unable to work. They are not a civil right under the ADA.
The definition of “disability” used by the insurance provider and the situations when employees can collect on these benefits will differ depending on the policy. Employees who have questions on short and long-term disability should contact the insurance provider directly.
What’s the Bottom Line?
Leave is generally considered an important protection in employment. For this reason, we see it come up over and over again whether it is a benefit of employment like paid time off (PTO); a federal, state or local law that protects a worker’s job while they take care of medical or family needs; or a civil rights protection for people with disabilities to gain equal access to employment opportunities.
Employers are required to provide equal access to the leave benefits they offer. They are also required to comply with applicable state, local and/or federal employment laws (FMLA, ADA, etc.). However, these benefits and laws can have different eligibility requirements and protections based on the situation which is why every case must be evaluated individually.
Unpaid leave under the ADA is typically a last resort for employees who need this as an accommodation due to a disability. Employers are not required to provide an amount of unpaid leave that would result in an undue hardship, but they are expected to look at alternatives that would not be an undue hardship, up to and including reassignment.
Do you have other questions on leave under the ADA? Contact the Great Lakes ADA Center at 800-949-4232 and check out the resources below.
Resources:
Accommodation and Compliance: Leave – Job Accommodation Network (JAN)Employer-Provided Leave and the Americans with Disabilities Act (ADA) – Equal Employment Opportunity Commission (EEOC)
Family and Medical Leave Act (FMLA) Frequently Asked Questions – Department of Labor, Wage and Hour Division
Work-Leave, the ADA, and the FMLA – ADA National Network
Great Lakes ADA Center Webinars:
Leave Under the ADA and FMLA – November 12, 2019Family and Medical Leave Act (FMLA): What You Need to Know! – March 19, 2024
