FAMILY MEDICAL LEAVE ACT AFFECTS THE ADA
FIRE SERVICE COURT
The Family Medical Leave Act of 1993 (known as the FMIA), effective August 1993, requires that publicand privatesector employers with 50 or more employees provide employees with up to 12 weeks of unpaid, job-protected leave from work for the birth or adoption of a child, to care for an ill family member, or to recover from a serious injury or illness. To qualify under the FMIA, an employee must have worked for the company or agency for at least one year prior to requesting the leave and must have worked at least 1,250 hours in the previous year.
Given the potential conflicts of the Americans with Disabilities Act (ADA) with other laws, the Department of Labor issued Interim Rules injune 1993 to guide affected employers. Under Section 825.702 of the Interim Rules, the Department of Labor reiterates that nothing in the FMLA modifies or affects any other federal or state law prohibiting discrimination on the basis of race, sex, religion, color, national origin, age, or disability. Accordingly, the Department of Labor has taken the position that an employer must comply with whichever statute provides the employee the greater rights. Violation by employers of either the FMLA or the ADA can result in recovery of damages under one or both of the statutes.
Under the ADA, an employer is required to make a reasonable accommodation for a qualified individual with a disability. Now, with the enactment of the FMIA, the employer will be required to meet the reasonable accommodation requirement of the ADA in addition to affording the qualified employee leave rights under the FMIA.
RETURN-TO-WORK CERTIFICATION
Caution should be used especially when addressing retum-to-work certifications. The FMIA permits an employer to establish a policy requiring employees to provide a certificate of fitness for duty prior to returning to work, provided that this policy is uniformly applied and applies only to the specific health condition for which the leave was requested. The ADA, however, limits the right of employers to make specific medical inquiries regarding the injury or illness. To clarify this potential conflict, the Department of Labor’s Interim Rules provide that despite the FMLA’s allowance of fitness-for-duty certifications, the ADA requirements that any return-to-work medical examination be job-related still must be met.
Because the FMLA is so new and clarification on many issues is needed to resolve areas of potential conflict with the ADA and other laws, prudent fire service organizations may want to review their policies and procedures to ensure compliance with the FMLA. From a management perspective, you may want to designate an individual(s) within the organization to develop and review procedures to ensure compliance and to monitor requests for leaves under the FMIA. The policies should cover issues such as the amount and kind of accrued time off (i.e., vacations and accrued time off) that can be used prior to taking an unpaid leave and the nature of the return-to-work certification, if any, that would be required. These matters should be addressed early to avoid hasty decision making if the issues should arise.
Information regarding the requirements of the FMIA should be provided to all levels of employees, and appropriate postings outlining this new law should be placed on a bulletin board or in some other designated area.
Fire service organizations should prepare to address the new employee rights provided under the FMIA in the most efficient and cost-effective method possible-through preplanning and ensuring compliance.
