The Essential Guide to Family & Medical Leave

chapter 11 | how other laws affect FMLA leave | 253
whether he is entitled to two months off as a reasonable accommodation. Sam’s job
is to maintain, update, and troubleshoot the company’s website. No one else knows
how to do this work and, because the website is relatively new, it requires a lot of work
to keep it running smoothly. You decide that it would be an undue hardship to give
Sam two months off, and you tell him that the company will have to replace him.
Although you might have been right under the ADA, you were wrong under the
FMLA. Sam’s disability almost certainly qualifies as a serious health condition, for
which he is entitled to FMLA leave (assuming he is otherwise eligible). The FMLA
doesn’t include an undue hardship defense: An eligible employee can’t be denied
leave because it would place too much of a burden on the company (unless the employee
qualifies as a “key employee,” as explained in Chapter 10). You must give Sam
his time off and figure out some way to get the work done in his absence.
There are several situations in which the FMLA and ADA are most
likely to overlap: when an employee requests a modified schedule, when an
employee requests (or an employer proposes) modified job duties, and when
an employee is unable to return to work after FMLA leave.
Tip
Count disability leave as FMLA leave. If an employee is covered by both
the ADA and the FMLA, make sure you count any time off the employee
takes due to his or her disability as FMLA leave, too.
Schedule Changes
An employee can take FMLA leave intermittently or on a reduced schedule,
and this might also be a reasonable accommodation for an employee’s
disability under the ADA. If the employee is protected by both laws, the
FMLA provides the greater benefit, because employees are entitled to job
protection and benefits continuation during intermittent or reduced-schedule
leave. And even if an employer transfers an employee to a different position
that better accommodates the need for leave, that position must have the
same pay and benefits of the employee’s original position. The ADA allows
a transfer as a reasonable accommodation but doesn’t give the employee the
right to the same pay and benefits, nor to benefits continuation.