ADA and FMLA: Two Public Policies in Search of Employee Fairness

Monday, July 25, 2016

Keeping a job is important to all of us. Keeping a job while you are disabled or dealing with an illness can be difficult, but maintaining employment and a pay check is critical to having an income to pay your bills (including medical bills) and for many of us our health insurance is provided by our employer.

Two federal laws that may help employees keep their jobs while coping with health problems are the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA). They may provide you with critical benefits and protections in case you are disabled or have an illness or have a close family member with a disability or an illness. They may make the difference between keeping a job and being unemployed.

ADA

The law covers private employers, governments (state and local), employment agencies and labor unions. Employers must have at least fifteen employees to be covered. The ADA prohibits discrimination against qualified individuals with disabilities who are job applicants or employees in hiring, firing, advancement, compensation, job training and other terms, conditions, and privileges of employment.

Under the law an individual with a disability is someone who,

  • Has a physical or mental impairment that substantially limits one or more major life activities,
  • Has a record or history of such an impairment, or
  • Is regarded or perceived to have such an impairment.

Depending on the circumstances if a person is “associated with” an individual with a disability (such as a spouse or child) the law also offers some protections. If an employer fears the disabled spouse of an employee may increase insurance rates and fires the employee as a result, that would violate the ADA.

A qualified employee or applicant with a disability is person who,

  • With or without reasonable accommodation,
  • Can perform the essential functions of the job.

Reasonable accommodations are changes, if needed, made by an employer to enable applicants or employees with disabilities to enjoy equal employment opportunities. A reasonable accommodation to perform a job depends on the needs of the employee and employer. The two must work together to come up with a solution they can both accept. If the employer refuses to reasonably accommodate a disabled job applicant or employee, that employer could be sued under the ADA.

There is no set check list of accommodations to choose from in the law. An accommodation could be,

  • Making existing facilities readily accessible and usable,
  • Job restructuring such as re-assigning certain job duties,
  • Modifying work schedules so that hours are changed or reduced,
  • Assignment to a vacant position which meets the needs of the employee, or
  • Providing qualified readers or interpreters.

An employer must make a reasonable accommodation to the known disability of a qualified applicant or employee unless it would create an “undue hardship” on the employer’s operation. An “undue hardship” would be an action requiring significant difficulty or expense considering the employer’s size, financial resources and the nature and structure of its operation.

An employer is not required to lower quality or production standards for a disabled employee (unless that’s been done for non-disabled employees) or supply personal use items such as glasses or hearing aids. If more than one accommodation would work, the employer can choose the one that is less expensive or disruptive.

Generally an employer need not provide a reasonable accommodation unless it’s requested. If an employer believes a medical condition is causing a performance or conduct problem it may ask the employee resolve the problem and if a reasonable accommodation is needed.

The ADA is not just about reasonable accommodations. Under the law disabled employees can’t be fired, disciplined, denied a promotion, harassed or suffer unequal terms of conditions of employment because of their disability. A person asking for or granted a reasonable accommodation can’t be retaliated against because of these actions.

If you’re an applicant or employee with a disability whose employer has fewer than fifteen employees you may be protected by New Jersey’s Law Against Discrimination.

FMLA

The FMLA provides eligible employees of covered employers to take unpaid, job-protected leave for family and medical reasons. Many people are not eligible for FMLA leave because either their employer doesn’t fall under the law or they haven’t worked enough to qualify for it. FMLA also doesn’t require paid leave so many people can’t afford to use it.

A covered employer is a,

  • Private employer with fifty or more employees working twenty or more workweeks in the current or preceding calendar year,
  • Public agency, including a local, state or federal government agencies, no matter the number of employees, or
  • Public or private elementary or secondary school, no matter the number of employees.

To be eligible an employee must,

  • Work for a covered employer,
  • Have worked for the employer for at least twelve months,
  • Have at least 1,250 hours of service during the twelve months immediately before the leave, and
  • Work at a location where the employer has at least fifty employees within 75 miles.

Eligible employees can use up to twelve work weeks of leave in a twelve month period for,

  • The birth or adoption of a son or daughter or placement in foster care of child,
  • Caring for a spouse, son, daughter or parent with a serious health condition,
  • A serious health condition that makes the employee unable to perform the essential functions of his or her job, or
  • For any qualifying event due to a spouse, son, daughter or parent who is a military member on covered active duty or on call to covered active duty status.

Depending on the circumstances employees may use FMLA leave on an intermittent or reduced schedule basis. This allows an employee to take leave in separate blocks of time or reduce the amount of hours he or she works each day or week.

After the FMLA leave is over the employee must be given back his or her job or an equivalent job with equivalent pay, benefits and other terms and conditions of employment. Employers are required to continue group health insurance coverage for an employee on FMLA leave as if the employee had not used leave. Employers cannot retaliate against an employee for requesting or obtaining FMLA leave.

An employee may be eligible for a leave under the FMLA due to a disability and it may also be a reasonable accommodation under the ADA. New Jersey also has its own, similar family medical leave act law. If the employee needs the leave because of a disability he or she may qualify for paid time off through New Jersey’s temporary disability insurance program.

If you believe you have been discriminated against at work in violation of the ADA or denied FMLA leave, please contact our experienced employment law attorneys at Hanan M. Isaacs, P.C.  Call 609-683-7400 or contact us to schedule an initial consultation at our Central Jersey offices in Kingston.  You will be glad you did.