The document provides an overview of key provisions and requirements of the Family and Medical Leave Act (FMLA). It discusses who is covered by the FMLA, reasons for which leave can be taken, eligibility requirements for employees, allowable length of unpaid leave, job protection provisions, and interaction of FMLA leave with other laws like the Americans with Disabilities Act and Workers' Compensation. Checklists are provided outlining analysis needed when an employee requires sick, medical or other leave.

1. Americans with Disability Act
Family Medical Leave Act
Workers’ Compensation
The Perfect Storm
James K. Cowan, Jr.
jcowan@cowanperry.com
540-443-2850 main
888-755-1450 fax
www.cowanperry.com

2. Overview of the Family &
Medical Leave Act (“FMLA”)
 Basic Protections
The FMLA allows eligible employees of a
covered employer to take job-protected,
unpaid leave, or to substitute appropriate
paid leave, for up to a total of 12
workweeks in any 12 month period for any
of the following reasons:

3. Overview of the FMLA cont.
 (1) the birth of a child and to care for the
newborn child;
 (2) the placement of a child for adoption or
foster care;
 (3) the care of a family member with a serious
health condition;
 (4) the employee's own serious health
condition which makes the employee unable to
perform the functions of his or her job; or
 (5) because of a “qualifying exigency” with
regards to an employee’s family member who is
a covered military member on active duty.

4. Overview of the FMLA cont.
 Eligible employees may also take
FMLA leave for up to 26 work weeks
in a single 12-month period to care for
a covered service member with a
serious injury or illness.

5. FMLA Cheat Sheet
1. Covered Employer = The FMLA covers private
employers with 50 or more employees (part-
time and temporary employees count) for each
working day during each of twenty or more
calendar workweeks in either the current or
preceding calendar year. Virtually any person
or business entity, regardless of form, that
affects commerce in any way and has the
requisite number of employees is subject to this
Act. No comparable Virginia law. We provide
this benefit to the Association even though the
Association does not meet the legal number.

6. FMLA Cheat Sheet cont.
2. Eligible Employee = worked at least 12
months (the 12 months need not be
consecutive) and 1,250 hours in 12 months
before leave starts. Also, the employee must
work at a site where 50 or more employees are
employed by the employer within 75 miles of
that work site.

7. FMLA Cheat Sheet cont.
3. Serious Health Condition (“SHC”) =
hospitalization or continuing medical treatment.
4. Leave = 12 weeks of unpaid leave for the
employee's SHC; or SHC of spouse, child,
stepchild, or parent; or birth, adoption or placement
of a foster child; or qualifying exigency. 26 weeks
unpaid leave for covered service member with
serious injury or illness. Leave given to both men
and women. Keep health coverage under same
conditions as if employee not on leave.

8. FMLA Cheat Sheet cont.
5. Return to Work Rights = Employer can
require a fitness-for-duty certification. If
employee cannot perform the essential
functions of the job at the end of the FMLA
leave, the employer can terminate them if
there are no ADA issues. At the conclusion of
FMLA leave, an employee is entitled to be
returned to the same position he or she held
when leave commenced. If the position is
unavailable, the employee is entitled to an
"equivalent position" with equivalent pay,
benefits and other terms and conditions.

9. FMLA Cheat Sheet cont.
6. Exhaust all paid leave; if a workers' comp
injury also a SHC, exhaust FMLA.
7. Watch out for ADA issues when FMLA leave
is finished.
8. If the employer violates the FMLA, the
penalties are: (a) damages due to lost
compensation; (b) interest on that amount;
(c) liquidated damages equal to (a) and (b);
and (d) attorney’s fees and costs.
9. Employees can sue individual supervisors for
violation of the FMLA.

10. Intermittent Leave or a
Reduced Leave Schedule
 Intermittent or reduced leave schedule when medically
necessary for planned or unanticipated medical
treatment for a SHC or for recovery from a SHC. This is
also allowed to provide care or psychological comfort to
an immediate family member with a SHC. This can be
leave of 1 hour or more.
 Intermittent or reduced leave schedule allowed for leave
due to a qualifying exigency.
 “Medical necessity” for intermittent leave requires a
medical condition that can best be treated during
intermittent leave. Employees must schedule intermittent
leave so as not to disrupt the employer’s operations.
(29 CFR 825.202)

11. Transfer to an “Alternative Position” –
29 CFR 825.204
 Transfer to accommodate intermittent leave or
reduced leave schedule:
 The employer can require the employee to
transfer temporarily to an alternate position that
better accommodates the schedule for the
employer.
 The alternate position must have equivalent pay
and benefits. However, the duties don’t need to
be equivalent.
 May not transfer just to discourage employee
from taking leave or just to cause hardship to
the employee.

12. Reinstatement and Equivalent Position
29 CFR 825.214-219
 Reinstatement Rights:
 When an employee returns from FMLA leave,
he/she is entitled to be returned to the same
position he/she held before going on leave, or
to an equivalent position.
 The equivalent position must have the
equivalent pay, benefits and other terms
and conditions of employment. If the
employer has a replacement worker in
the job, that replacement worker must
be removed so the employee goes
back into the same job.

13. Limits on Reinstatement Rights
29 CFR 825.216
 No reinstatement required if the employee:
1. Is no longer qualified to perform the job
(watch out for ADA issues);
2. Cannot perform an essential function of the
job at the end of the 12 weeks because of a
SHC or other physical or mental condition
(watch out for ADA issues);
3. Would have lost his or her job, even if no
leave had been taken - for example, layoffs,
plant closings;
4. Announced that he or she did not intend to
return from leave. Terminate immediately,
don't wait to see what happens. Take them
up on the offer not to return;

14. Limits on Reinstatement Rights cont.
29 CFR 825.216
5. Is a "key" employee, whose reinstatement
would cause substantial and grievous
economic injury to the employer. These are
people in the top 10% of salaried
employees, usually highly paid executives;
6. Obtained leave fraudulently; or
7. Violated the employer's "moonlighting"
policies while on leave. Employees cannot
take other outside employment while on
leave.
 No reinstatement required if the employee:

15. Limits on Reinstatement Rights cont.
29 CFR 825.216
 No reinstatement required if the employee:
8. Employees on FMLA leave may be
disciplined and terminated as if they were at
work. The FMLA does not protect
employees from discipline, although it does
make discipline more problematic.
 The burden of proof when an employee
has been discharged and not reinstated
is with the employer. (825.216(a))

16. OVERVIEW OF THE ADA
 Federal law enacted in 1990 aimed at eliminating and
remedying discrimination against individuals with
physical or mental disabilities.
 Prohibits discrimination against qualified individuals
with disabilities, and affirmatively requires employers
to reasonably accommodate such persons.
 Prohibits discrimination (like other EEO laws)
 Disparate treatment
 Disparate impact
 Harassment
 Retaliation
 Imposes affirmative duty to provide reasonable
accommodation to individuals with disabilities to afford
them equal opportunities to perform essential job
functions.

17. How do I reasonably
accommodate a disability?
 Accommodations must be made on a case-by-case
basis, because the nature and extent of a disabling
condition and the requirements of the job will vary.
 Accommodation may be suggested by the individual
– The Employee Must Ask for help but the employee
does not have to use the word “accommodation”!
 A reasonable accommodation need not be the
“best” or “preferred” accommodation
 The principal test in selecting a particular type of
accommodation is that of effectiveness, i.e., whether
the accommodation will enable the person with a
disability to perform the essential functions of the job.
 The appropriate accommodation may be obvious

18. How do I reasonably accommodate
ADAAA disabilities? 4-Step Process
1. Look at the particular job involved. Determine its
purpose and its essential functions.
CONTACT HR—DON’T DO THIS ALONE
2. Consult with the individual with a disability to
find out his or her specific physical or mental
abilities and limitations as they relate to the
essential job functions. Identify the barriers to job
performance and assess how these barriers could
be overcome with an accommodation.

19. How do I reasonably accommodate
ADAAA disabilities? 4-Step Process
3. In consultation with the individual, identify potential
accommodations and assess how effective each would be
in enabling the individual to perform essential job functions.
 If this consultation does not identify an appropriate
accommodation, technical assistance is available from a
number of sources, many without cost. (Job Accommodation
Network (JAN))
 There are also financial resources to help with
accommodation costs.
4. If there are several effective accommodations that
would provide an equal employment opportunity,
consider the preference of the individual with a
disability and select the accommodation that best serves
the needs of the individual and the employer.

20. Examples of Reasonable
Accommodations
 Lowering the height of a desktop to
accommodate a worker in a wheelchair
 Providing TDD telephone equipment for a
hearing impaired worker
 Providing a quiet, distraction-free
workspace for a worker with ADD
 Part-time or modified work schedules
 Reassignment

21. Leaves of Absence May Be
Reasonable Accommodation
 The EEOC has recognized the following as
examples of situations in which an employee may
be entitled to time away from work as a reasonable
accommodation:
 To obtain medical treatment, rehabilitation services, or
occupational therapy
 To recuperate from an illness or an episodic
manifestation of the disability
 To avoid temporary adverse conditions in the work
environment (e.g., a breakdown in air conditioning that
will aggravate a respiratory disability)
 If the employee has paid leave available, the
employer should allow its use before requiring unpaid
leave. Otherwise, leave granted as an accommodation
need not be paid.

22. Leaves of Absence May Be
Reasonable Accommodation cont.
 Indefinite leaves or with no proposed end date
are generally unreasonable and need not be
granted.
 How long a leave needs to be to be
considered a “reasonable” accommodation
generally depends on specific circumstances,
such as whether the employee has already
been given significant time off, whether the
requested leave is of a substantial duration,
and how likely it is that the employee will be
able to return on the proposed end date.

23. Conflicts Between ADA and FMLA
ADA FMLA
 “Disability”
 Enforced by EEOC
 Covers private
employers w/ 15 or
more employees
 No protected leave
 Disability related
inquiries and
examinations
prohibited
 “Serious Health Condition”
 Enforced by DOL
 Covers private employers
w/ 50 or more employees
 12 weeks unpaid,
protected leave
 Requiring medical
certifications pursuant to
request for leave is
permissible

24. Managing ADA Leave to Minimize
Operational Disruptions
 Require, as part of the interactive process, that
the employee provide periodic updates on his/her
condition and possible date of return.
 Consider transferring marginal functions to
other employees for the duration of the leave
 Consider an accommodation that requires the
employee to remain on the job in lieu of providing
leave (as long as it does not interfere with the
employee’s ability to address his/her medical
needs).

25. Laws to Review When an Employee is Sick,
Injured, or Otherwise Needs to Take Leave:
(1) Family and Medical Leave Act (FMLA)
[Sets minimum leave standards for various enumerated
circumstances]
 Is employee eligible?
 Is the leave for a FMLA-qualifying reason?
 12 weeks of unpaid leave for the employee's serious health
condition (SHC); or SHC of spouse, child, stepchild, or
parent; or birth, adoption or placement of a foster child; or
qualifying exigency.
 26 weeks unpaid leave for covered service member with
serious injury or illness.
 Keep health coverage under same conditions as if not on leave.
 Serious health condition = hospitalization or continuing medical
treatment.
 Provide all required notices.

26. Laws to Review When an Employee is Sick,
Injured, or Otherwise Needs to Take Leave:
(2) Workers’ Compensation
[Provide for payment of compensation and rehabilitation for
workplace injuries]
 Is the workers’ comp injury also a serious health condition
under the FMLA?
 Is employee eligible for FMLA leave?
 IF YES to both: Exhaust the employee’s FMLA leave (treat
workers’ comp leave as FMLA leave also) and continue
benefits for duration of FMLA leave.
 Return to work: Offer Employee light duty but cannot require
light duty if FMLA leave still available.
 Employee may lose workers comp benefits but can still remain
on FMLA leave.

27. Laws to Review When an Employee is Sick,
Injured, or Otherwise Needs to Take Leave:
(3) Americans With Disabilities Act (as amended (ADAAA)
[Prohibits discrimination against employees and applicants who are
“qualified individuals with a disability.”]
 Is disability / impairment also a serious health care condition under
FMLA?
 Is employee eligible for FMLA leave?
 If YES to both: Exhaust the employee’s FMLA leave and continue
benefits for the duration of the FMLA leave.
 If absence exceeds 12 weeks or FMLA leave otherwise exhausted 
Additional leave may be a reasonable accommodation unless it would
create an undue hardship.
 Must offer light duty as reasonable accommodation unless it would
create an undue hardship, but cannot require light duty if FMLA leave
is still available.
 Fitness-for-duty / medical certifications: Allowed, but must be job-
related and limited to determining ability to perform essential functions
of the job and whether accommodation is needed and would be
effective.

28. Laws to Review When an Employee is Sick,
Injured, or Otherwise Needs to Take Leave:
(4) Military Leave (USERRA)
[Provides reemployment rights for veterans and members of National
Guard and Reserve after qualifying military service; prohibits
discrimination.]
 Service members who are reemployed receive all benefits of
employment that they would have obtained if they had been
continuously employed.
 This includes the 12-month and 1250-hour requirements to
become eligible for FMLA leave. The time spent out of work
for military service counts.
 Employee must give advance notice of the leave; no time
frame is required and notice can be oral.

29. Laws to Review When an Employee is Sick,
Injured, or Otherwise Needs to Take Leave:
Company Benefit Policies (LTD, paid sick leave, etc.)
 Does the employee who needs to go on FMLA leave have
paid time off (accrued paid vacation, family leave, sick leave
or leave share) available?
 IF YES: Exhaust the employee’s accrued paid time off –
require the employee to use paid leave concurrently with
FMLA leave.
 Even employees who are not entitled to any paid time off
under standard Company policies may still be eligible for
unpaid FMLA leave.
 LTD payments are made by insurance carrier and decision to
pay is made by insurance carrier.
 If Employee is approved for workers comp benefits, LTD will
probably be denied.

30. YESYES
YESNO
NO
ALSO
NO
Is it a “serious health condition” under the FMLA?
Is employee
eligible for FMLA
leave?
Employee is entitled to leave under
the FMLA: See FMLA Checklist
 Send the required notices.
 Exhaust FMLA leave – if also a
workers’ comp issue, treat workers’
comp leave as FMLA leave.
 If employee has accrued paid time
off, exhaust paid time off
concurrently with FMLA leave.
 Employee entitled to 12 weeks leave,
unless more leave given as an
accommodation for a disability.
Is it a workplace
injury?
Workers’
Compensation /
HR issue:
Employee will get
the workers’ comp
benefits and/or
leave to which
he/she is entitled.
Is it a “disability” under
the ADA?
YES
ADA Issue:
See ADA Checklist
 Interactive Process
 Is there a reasonable
accommodation that
would allow employee
to perform the essential
functions of the job?
 Consider leave /
additional leave as an
accommodation – if not
undue hardship.
Employee may
still need to take
leave under
Company
benefit policies /
insurance: LTD,
sick leave,
personal leave,
etc.
(if also a workplace injury)
NO

31. 250 South Main Street, Suite 226
Blacksburg, VA 24060
p: 540.443.2850
1328 3rd Street, S.W.
Roanoke, VA 24016
p: 540.777.3450
www.cowanperry.com
James K. Cowan, Jr.
jcowan@cowanperry.com
888.755.1450 fax