FMLA and ADA meet again at the Serious Health Condition nexus

Our question for this post is whether FMLA and ADA may meet when an employee requests FMLA leave for a serious health condition of himself, a spouse, child or parent under 29 CFR 825.113-115. The answer is: Maybe.

Recall in an earlier post that I discussed leave as a possible form of reasonable accommodation for disabilities. In that case, the employee may request 12 weeks of FMLA leave and then request additional time off beyond the 12 weeks as a means of reasonably accommodating the disability under ADA. (“An employer must therefore provide leave under whichever statutory provision provides the greater rights to employees.” 29 CFR 825.702(a)).

There is another situation in which ADA may come into play, prior to the need for reasonable accommodation. If an impairment constitutes a serious health condition, the impairment may be severe enough to be defined as a disability. This results from the Secretary of Labor adopting ADA’s definition of and the EEOC’s interpretation of disability for purposes of  FMLA. (see 29 CFR 825.800, definition of physical or mental disability.)

In the case of Navarro v. Pfizer, 261 F.3d 90 (2001) out of the First Circuit, Navarro’s adult daughter suffered pregnancy-induced hypertension at 36 weeks and was put on bed rest. Navarro was denied FMLA leave to care for her daughter and was terminated when she did not return to work. Because the daughter’s type of hypertension constituted a serious health condition under 29 CFR 825.13, the question for the court was whether the impairment was a disability. Pfizer said that due to the short duration of the impairment, it was not a disability and Navarro was not due FMLA leave to care for her adult child.

The key in this case and under current law is not to get hung up on the duration of the impairment. Under the new ADAAA regulations, it has been made abundantly clear that duration does not, in and of itself, determine whether an impairment is a disability. The court, being ahead of its time, said exactly this way back in 2001:  “[V]ery little weight should be place on the duration of the impairment.” This statement is in line with the sponsors of ADAAA who said that the duration of an impairment is only one consideration and even an impairment lasting a short time may be covered as a disability, if the impairment is sufficiently severe. (See http://www.gpo.gov/fdsys/pkg/FR-2011-03-25/pdf/2011-6056.pdf.) Of course, the sponsors were talking about ADA and not FMLA. But, again, the two collided when the ADA definition of disability was adopted by the Secretary of Labor as to FMLA.

The court ultimately decided that the daughter’s PIH could very well be a disability and sent the case back to the lower court. (I won’t bore you with the legal jargon, but the court was not actually deciding if a disability existed, only whether there was a good possibility that it existed and, therefore, whether the case should continue.)

What does this mean for you, the employer? It means you should keep an eye open for disabilities creeping in when you think you’re only dealing with FMLA. A serious health condition may not seem to rise to the level of disability but, if it does, other issues can come into play.

First of all, if the person with the disability is not the employee, then you are only dealing with FMLA leave. However, once the employer knows the employee has a relationship with a disabled person, the employer is prohibited under ADA from discriminating against the employee on that basis. So if it’s just not convenient for the employee to take FMLA leave to care for a disabled child, for example, don’t give into the temptation to start treating the employee adversely because you see their relationship with a disabled person as a liability. Then you can get in hot water for retaliating under FMLA, as well as violating ADA.

Second, although we have been discussing impairments of a short-term duration, if the person with the potential disability is the employee, you may end up having to grant additional leave under ADA, as previously discussed, for reasonable accommodation.

Although I used the example of Navarro, the focus will not always be on the duration of the impairment. Other factors may easily come into play and it may not always be immediately obvious whether a disability is involved. Employers should remain alert to the possibility that when FMLA is at issue, it may not be the only issue.