If I'm on approved intermittent FMLA for a year due to my fibromyalgia. Can my boss require me to have my doctor fill out the FMLA paperwork each time I'm out for more than 3 days? Can they also charge me AWOL during this period if I'm out due to a condition related to my fibro? I also submitted a script from my doctor requesting telework 6 months ago. My boss did nothing with it. I followed up with him every month and he told me he hadn't heard anything back yet. I submitted another script at the 5 month mark and another one yesterday. He's now claiming to HR he knew nothing about my request even though he has all the documentation and I have copies and emails. Isn't his non-response a violation of ADA?

1 answer  |  asked Mar 17, 2009 05:52 AM [EST]  |  applies to New York

Answers (1)

David M. Lira
FMLA and the ADA

I find the connection between the FMLA and the ADA interesting, but I doubt that many employment attorneys have full knowledge about how these two laws interact because they are both relatively new. (FMLA was enacted only in about 1993 -- for the law that is pretty new -- and, even though the ADA was originally enacted in about 1991, because it was interpreted in such a narrow way by courts until recent -- 2009 -- amendments to the law, in effect, the ADA is brand new.) I have had a couple of cases where the connection between the FMLA and the ADA, as well and State and New York City discrimination provisions, created many interesting issues.

But note, you can have a violation of the FMLA without a violation of the ADA, and vice versa. At times, a particular employer action can violate both the ADA and FMLA at the same time.

The ADA, as well as the NY State Human Rights Law and the NYC Human Rights Act, protects persons with disabilities from discriminatory conduct. This is different than the FMLA, which provides for limited unpaid leave for persons with serious health conditions. A serious health condition is not necessarily a disability.

There is another interesting connection between the ADA and FMLA. (In this situation, there is no connection between the FMLA and the NYS Human Rights Law. I'm not sure about the connection with the NYC law.) The ADA provides protections for associational discrimination. This comes up, for example, when you have no disability but you are associated with a person with a disability. A good example is when an employee has a child with a chronic, serious condition. An employer might want to get rid of an employee with a sick child because the employer might be concerned with future attendence and the impact on health insurance costs. However, terminating the employee because the employee has a sick child might violate the ADA.

Now, the sick child's condition might be considered a serious health condition under the FMLA, permitting the employee to take FMLA leave, perhaps on an intermittent basis, to take care of the child. Now, terminating the employee for taking leave to take care of the child might violate both the ADA and the FMLA. In addition, the employer has to be careful that the employee gets FMLA leave on the same terms and conditions as other employees taking FMLA leave. If not, the employer might violate the ADA.

It gets a bit complicated.

How often an employer is entitled to medical documentation for FMLA leave will depend on a number of different things, but probably mostly on how the leave is taken. The problem with the term "intermittent" is that it can mean many things. So, the more that intermittent leave is taken on an irregular and unanticipated basis, the more likely the employer might be entitled to documentation each time FMLA leave is taken. If the intermittent leave is taken on a regular, anticipated basis, for example, I had a case where the employee knew she needed one hour of leave for each day of work, the employer is not likely to be entitled to documentation on each absence.

I'd say in your case, if you want a more definitive answer, you need to consult with an attorney.

posted by David M. Lira  |  Mar 17, 2009 1:36 PM [EST]

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