Interaction Between The ADA, FMLA And ERISA

The issue of how the ADA interacts with the Family Medical Leave and the Employee Income Security Act has become at hot topic of discussion. Many employers do not understand the pitfalls which arise when a disabled employee takes a emergency or planned leave of absence under the FMLA.

When the employer is faced with a request for a disability leave of absence, three areas of law come into play. Under the ADA, such a leave of absence, if requested, can be considered a reasonable accommodation. Although the length of such leave under the ADA has not been clearly established. The employer should apply the disability leave policy on a case by case basis, because no two employee leaves will be the same. As an employer, you should not inform the employee that the disability leave is considered a reasonable accommodation. The employee is the one who must make such a request and document the need for the accommodation with appropriate medical documentation. Once requested, the employer is obligated to begin the interactive process to determine whether the leave is reasonable.

However, when the requested leave is made pursuant to the FMLA, the employer must immediately issue a written notice to the employee requesting the employee complete the appropriate form (assuming the FMLA applies to employer). In addition, the employer must issue to the employee a certification of a serious medical condition, to be completed by his or her physician.

The most common problem encountered by employers is not the sole application of the employer's FMLA leave policy, but the duration of the leave when a ADA leave is made concurrently. The employer should note that when this event occurs, the employer is dealing with either a very sophisticated employee or one that is being represented by counsel behind the scenes.

There a couple of different options the employer can taken in this situation. First, the employee will exhaust the available 16 weeks of FMLA leave, and the employer issues a notice of termination when the employee does not return to work. However, this may prompt a retaliation issue, because the notice of termination can be considered an adverse employment action after a request for an ADA leave. Most employers follow this route because the FMLA does not require them to continue to employ an individual beyond the FMLA leave time. On the ADA issue, the employer can deny the additional ADA leave on the grounds that the employee does not have a disability within the meaning of the ADA, i.e. a disability which substantially impairs a major life activity. Remember, a "serious medical condition" under the FMLA does not equate to a disability as now defined by the ADA. An employee can have a serious medical condition, but yet not have an ADA disability. Make sure the employer is working with its own physician to review the medical information being supplied by the employee on both the ADA and FMLA requested leaves.

If the employer confirms that an ADA disability leave is legitimate, the employer must evaluate how long the leave will last beyond the FMLA 16 weeks. This is a very convoluted area of the law. The employer must approach it from two fronts, first the FMLA and then the ADA side. Having discussed the FMLA options, the ADA requested leave can last as long as it is deemed reasonable by the employer. No court will force the employer to keep the position open indefinitely, even the new EEOC Guidance (attached herein) provides for such relief. Unfortunately, the employer is the only one who can determine how long the leave will last. Approach this situation cautiously, but with confidence. The caution is made because the employer may never know when the employee is being represented by counsel behind the scenes.

It is quite common for the employer to place the employee on a concurrent short-term disability leave, in accordance with company policy. This action may be considered a granting of an accommodation under the ADA. If the employer promotes this option, it will be viewed as behaving in good faith under the ADA, i.e. the action is defensible. The short-term disability leave is the first step in moving the employee closer to an application for long-term disability benefits. When pursuing this option, please be mindful that the basic logic behind most short and long-term disability policies is to return the employee to work as soon as possible. Most employers and contracting LTD carriers have provisions in the plan document for rehabilitation of the disabled employee. Do not make the mistake of using the employer's disability leave policies as way to remove the employee. Most plaintiff's attorneys are mindful of this scenario and have brought claims of ADA discrimination for forcing the employee out of the position.

When the employee's employment status has been changed to an "employee for benefit purposes only," the employer still faces liability under the ADA for discrimination in the administration of the LTD benefits. Although this topic is too complex to discuss here, I will make a couple of points to remember. Plaintiff's have challenged the LTD employer sponsored plans under the ADA, by asserting a denial of accommodations and discrimination in the administration of such benefits based on disparate treatment of different types of disabilities. First, there are cases where an employee has continued to make reasonable accommodations requests during the claim approval process on an LTD application. This occurs normally when the LTD carrier is requesting an Independent Medical Examination and the employee requires an accommodation before and during the evaluation. This area of ADA/ERISA law is wide open and any accommodation the employee requests must be dealt with seriously. There is no distinction made between a failure to accommodate an employee during active vs. inactive employment.

Discrimination claims alleging a subterfuge in the administration of the LTD plan benefits have arisen in the area of disparate treatment. The courts are currently split on whether a valid claim exists as to whether the plan administrator can treat physical and mental disabilities differently, in terms of the duration of coverage.

There is one very important case to discuss with regard to the interaction between the ADA and ERISA. In Cleveland v. Policy Management Systems, the United States Supreme Court held that an individual is not presumptively barred from bringing an ADA employment case concurrently with the filing of his or her application for long-term disability benefits or Social Security Disability Income benefits (copy attached herein for your reference).

The case arose because many employers were challenging an employee's claims under the ADA, that they are a qualified individual with a disability capable of performing the essential functions of the position, with or without an accommodation, at the same time they requested LTD or SSDI benefits. The employers position was that the allegedly qualified employee made conflicting statements on their LTD or SSDI applications, claiming "total disability" in order to receive benefits. The Supreme Court held that employees are allowed to maintain an ADA claim, concurrently with an LTD and SSDI application, because the LTD plan provisions and the SSDI regulations do not take into account reasonable accommodations when rendering a determination for disability benefits. Therefore, employees must have made requests for reasonable accommodations which would have allowed them to perform the essential functions of their position with accommodations.

If and when the employer faces this circumstance, steps must be made to determine the existence of any verbal or written accommodation request. Second, the employer must document the fact there was no reasonable accommodation to be made and the employee was not qualified to perform the job in question, even with an accommodation.