How the ADA interacts with FMLA and disability
Clients need help with compliance, and brokers can offer guidance.
Read more from the Guardian Absence Management blog
Key fact: Most employers handling FMLA administration in-house would not pass a Department of Labor audit.¹
An increasing number of employee leave regulations at the local, state, and federal levels may affect your clients – and may put them at risk for costly non-compliance. It starts with the fact that every client with more than 50 employees must comply with the federal Americans with Disabilities Act (ADA) AND the Family and Medical Leave Act (FMLA).
Depending on where the employer is located, they may also be subject to state or municipal laws mandating family and medical leave and short-term disability. If employees work at different sites, they may be subject to different protections depending on their location – and as more employees work remotely, there's the potential for even greater confusion. Plus, any given employee may qualify for leave under more than one law.
Bottom line? Ensuring effective administration, compliance, and absence management has become a complex endeavor that, if not handled correctly, can put employers at risk of substantial penalties, including punitive and compensatory damages.
But even more important, understanding how leave requirements interact with one another helps you more effectively guide clients toward the ultimate goal: Ensuring employees are given the time to which they are entitled, so they can deal with different life events while keeping their job security.
Your clients face an increasing array of compliance challenges
The Americans with Disabilities Act is a federal law applying to businesses with 15 or more employees that provides important protections for employees with disabilities. Under the ADA, employers must ensure ADA-compliant accommodations, including extended leaves, for a wide range of employees. This includes, but is not limited, to workers requiring medical treatment for disabilities such as, cancer, HIV/AIDS, mental illness, and, in certain cases, long COVID.
Managing ADA requirements on top of growing federal, state, and local requirements has made managing employee absence more complex. Depending on the number of employees, your business clients will also be required to comply with one or more of the following:
The Family and Medical Leave Act is a federal law applying to businesses with 50 or more employees. Under the FMLA, employees who meet certain criteria are entitled to up to 12 weeks of unpaid, job-protected leave per year for the birth and care of a newborn child; placement with the employee of a child for adoption or foster care; the care of an immediate family member with a serious health condition; or to take medical leave when the employee is unable to work because of a serious health condition.
How the ADA interacts with FMLA:
According to the ADA National Network, your clients with more than 50 employees need to remember that if they meet definitions for both “disability” (ADA) and “serious health condition” (FMLA).
Further, workers can still have rights under ADA after they have used up their FMLA leave. One such right is accommodation involving additional leave beyond FMLA leave.
State and local Paid Family and Medical Leave (PFML) laws. In addition to the federal FMLA, – a growing number of states and municipalities now mandate PFML leave for employees with similar family responsibilities or medical needs.
How the ADA interacts with these laws:
State and local leave laws can often take coverage and protections further than federal laws, so it’s important to keep track of what employees are entitled to, depending on which states they work in. For example: The ADA covers employers with at least 15 employees, but certain states have laws that begin covering clients with as few as five employees, such as California’s Fair Employment and Housing Act.
Short-Term Disability (STD). Employees may also be covered under state Workers' Compensation laws and/or Workers' Compensation laws apply to all employers with one or more employees, and 12 months and 1,250 work hours, the FMLA — with some employers providing up to 26 weeks or more.2
The reality is, many HR departments are struggling to keep up with these ever-evolving regulations. That’s why a growing number of employers are centralizing their efforts by administering STD, FMLA and, increasingly, ADA through a single process.
In fact, the 2022 Guardian Absence Management Study and Index found that outsourcing increased from 47% to 52% of all employers (with at least 50 employees nationwide) and has more than doubled from 2012 to 2021.3
Outsourced absence management can provide a cost-effective solution
Outsourcing leave administration to an insurance carrier or third-party administrator with targeted experience in compliance, claims management, and reporting can lighten the load on multiple departments, including Human Resources, Benefits, and Risk Management. In addition, an increasing number of solutions also incorporate ADA services, which helps employers significantly improve compliance and efficiency while creating a better experience for employees.