The Essential Guide to Family & Medical Leave

274 | the essential guide to family and medical leave
the employee could work with a reasonable accommodation but wants to
take FMLA leave, you must provide leave.
• Remembering that undue hardship doesn’t apply to the FMLA. This is
a common source of confusion: Although the ADA doesn’t require an
employer to provide a reasonable accommodation to help an employee
perform the essential functions of his or her job if it poses an undue
hardship, no such defense applies to FMLA leave. The employer has to
provide the leave, no matter how difficult it might be. (The employer
might not have to reinstate “key employees” if that would cause grievous
economic harm to the company, however—see Chapter 10).
• Considering additional time off or job modifications for employees who
can’t return to their old jobs. Although the FMLA entitles an employee to
return to his or her former position after using up leave, the ADA might
entitle the employee to additional protections, such as more leave or
changes to the job, as a reasonable accommodation for the disability. If it
appears that an employee won’t be able to return to work after completing
FMLA leave, it’s time to start thinking about reasonable accommodations.
Mistake 2: Forgetting to designate leave taken concurrently under the
FMLA and other statutes as FMLA leave.
Avoid This Mistake By:
• Always considering the FMLA when an employee takes time off for his
or her own illness or injury. Some companies outsource their workers’
compensation claims handling, then neglect to designate this time off
as FMLA leave. Or, if an employee has had an obvious disability (for
example, having to use a wheelchair) from his or her first day of work,
you might be so accustomed to allowing the ADA to guide your actions
that you forget to consider the FMLA when the employee needs leave.
• Thinking “FMLA” when an employee uses state temporary disability
insurance programs. Any time for which the employee is reimbursed
by one of these programs (in the states that have them) is almost always
FMLA leave.