Employers are seeing an increase in employee requests for Family and Medical Leave (FML) following a denial of a request to work remotely because of an employee or family member’s high-risk health factor.
Accommodation requests under the Americans with Disabilities Act (ADA) and FML requests are two separate processes. Required documentation and interactions with employees differ, so employers should ensure paperwork and procedures accurately reflect the request being made.
Disability and serious health condition defined
For purposes of administration, a district must consider both the definition of disability under the ADA and the definition of serious health condition under FML. The ADA provides a three-pronged definition of a disability—a physical or mental impairment that substantially limits a major life activity of an individual, a record of such impairment, or being regarded as having such an impairment.
Impairments that are episodic (e.g., epilepsy) or in remission (e.g., cancer) are disabilities if they would be substantially limiting when active.
For FML, a serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves one of the following:
- Inpatient care or treatment connected with inpatient care
- Incapacity for more than three consecutive days with continuing treatment by a health care provider (i.e., inability to work, attend school, or perform other regular daily activities due to the serious health condition and treatment for and recovery from the condition)
- Period of incapacity due to pregnancy or for prenatal care
- Chronic serious health condition that results in incapacity or requires treatment that includes at least two periodic visits each year to a health care provider, continues over an extended period of time, and causes episodic periods of incapacity
- Conditions that require multiple treatments
- Treatment for substance abuse
Continuing treatment includes examinations and evaluations of a condition and regimen of prescription or therapy. It is defined as an in-person visit that must take place within seven days of the first day of incapacity and results in one of the following:
- Treatment occurring two or more times within 30 days of the incapacity
- Treatment on at least one occasion resulting in a regimen of continuing treatment under the supervision of the health care provider (e.g., course of prescription medication, therapy requiring special equipment)
ADA or FML
ADA requires employers to provide reasonable accommodations to an employee if known physical or mental limitations interfere with an employee’s ability to perform the essential functions of the job, unless doing so would impose an undue hardship on business operations. Employers must enter into an interactive process with the employee to determine whether a reasonable accommodation can be made. Accommodations for the disability of an employee’s family member are not required by the ADA.
FML may apply if an accommodation for an employee’s disability cannot be made or when the request is related to risk to a family member. However, as described above, a disability may not require ongoing treatment and may not meet the definition of a serious health condition under the FMLA.
The employer should complete the Notice of Eligibility and Rights and Responsibilities and require the employee to submit a Certification of Health Care Provider for Employee’s Serious Health Condition or Certification of Health Care Provider for Family Member’s Serious Health Condition to validate the need for leave.
The health care provider must complete all sections and include information on the employee’s or family member’s incapacity, regimen of treatment, and likely period of absences. Simply transferring information from the ADA Medical Information Request Form to an FML form is not sufficient. If medical certification is incomplete or insufficient, timelines and processes outlined in the FMLA regulations apply.
Resubmission to the health care provider may be required if the form is incomplete or additional clarification is needed but should be returned by the employee in seven days. Details on processing FML requests can be found in the HR Library topic, Family and Medical Leave.
The Department of Labor (DOL) revised sample medical certification forms in June 2020 to make them easier to understand for employers, leave administrators, health care providers, and employees seeking leave. Sample updated FML forms are available in the HR Library and on the DOL website.
Karen Dooley is a senior HR consultant, and April Mabry is an assistant director at TASB HR Services. Send Karen an email at firstname.lastname@example.org or to April at email@example.com
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