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Should an Accommodation Request Automatically Trigger FMLA?

ADA Accommodations and FMLA paperwork

From the desk of Melanie Whetzel, M.A., CBIS, Principal Consultant, Team Lead

A question JAN has been getting more and more frequently of late is “Why is my employer forcing me and my doctor to fill out FMLA paperwork when I asked for an accommodation so I can work? I thought FMLA was for leave.” 

It is a valid question. When an employee asks for an accommodation under the Americans with Disabilities Act (ADA), the employer should proceed with the interactive process to determine exactly what the employee is asking for and why. Many times, an accommodation request is for leave, but just as often the request is for a modified schedule, a reassignment, a change in supervisory method, or something else. If an employee requests leave or an employer believes that leave is the only option, then requiring FMLA paperwork may be justified. Here are some examples of when it might be appropriate to have an employee complete FMLA paperwork:

Betty asked for time off after she was diagnosed with breast cancer. Treatment that included radiation and chemotherapy was making her too sick to work. Her employer immediately provided her with FMLA paperwork to cover her need for protected leave. 

Bill asks to be excused from required overtime because his disability causes fatigue. His employer determined that it would be an undue hardship under the ADA to excuse Bill from overtime because they were shorthanded. However, the employer offered FMLA paperwork to see if Bill was entitled to use FMLA leave to cover the overtime hours.

Ted asked for leave as an accommodation under the ADA because his wife had a severe mental health condition requiring his full-time care. His employer explained that the ADA only requires accommodations for employees with disabilities, but the FMLA might apply. The employer provided the employee with FMLA paperwork. 

Okay, so that covers leave, but what about when the employee is not asking for leave? What about when the employee is asking for an accommodation that would enable the employee to work? Should FMLA paperwork be filled out as something to fall back on? But if an employee is asking for an accommodation that is unrelated to leave, how is the employee’s doctor expected to complete the forms with information of why leave is needed if it is not? Confusing, right? Medical documentation that can be required to substantiate an employee’s request for FMLA leave could vary greatly from that required for an ADA accommodation and may be totally unnecessary. Here are some examples:

Seth asked for a modified schedule to allow him more breaks of lesser duration so that he could get up and move around to refresh his thinking. Seth has a mental health condition, and the medication that he takes to help him manage his symptoms slightly impairs his focus. He and his doctor agree that the ability to have more frequent breaks, rather than a lunch hour and a short afternoon break, would increase his ability to focus and complete his work. He doesn’t require time off from work, just a few adjustments to his schedule, which his doctor thoroughly documented. Why then would his employer require him to submit FMLA forms? 

Lacey asked for a more private workspace in order to help her better control her environment amid the noises and disruptions that were occurring in her open office space. She was diagnosed with attention deficit / hyperactivity disorder (ADHD) several years ago and had learned how to manage her symptoms and work effectively in her cubicle, until her employer did away with the cubes in favor of an open office. When Lacey submitted her accommodation request with the medical documentation supporting it, her employer gave her FMLA paperwork to complete. When Lacey questioned it, her employer told her that was their process.  

Max has autism that results in some difficulty in communication. He also has anxiety, so speaking with his supervisor is difficult. When Max disclosed and asked for assistance in strategies for more effective communications, the employer insisted he submit FMLA paperwork, which thoroughly bewildered Max and his doctor. 

Here’s the catch in all of this. If an employee’s doctor believes that the employee is fully capable of working with accommodations and can provide the medical documentation that substantiates it, forcing the doctor to fill out the FMLA paperwork for something the employee doesn’t need would be inappropriate and could inadvertently require the doctor to disclose private medical information about the employee not related to the reasonable accommodation request. There are also factors, such as length of employment, that could result in an employee being ineligible for FMLA leave but still eligible for reasonable accommodations under the ADA. In this instance, requiring FMLA documentation could cause an employer to improperly deny an ADA request for reasonable accommodations. 

What is an employer to do? Employers should follow the interactive process and ask for clarification of what accommodation the employee is requesting if needed. But when Seth asked for a modified schedule of breaks, Lacey asked for a private workspace, and Max asked for help with communications it seems clear that they are not asking for leave. The employer may require documentation of an employee’s specific disability for which they are requesting a reasonable accommodation. However, this is different from FMLA paperwork which would be unnecessary for many reasonable accommodation requests under the ADA.

As you can see, there are certain health conditions that may require an employee to take time off from work and that is when FMLA leave might be appropriate. This is when the employer can require the employee to complete FMLA paperwork. However, an employer should be sure of what the employee is asking for before requiring paperwork that might be perplexing at best, and inappropriate or discriminatory at worst. 

If an employee asks for leave, and is eligible for FMLA, there is a valid reason for an employer to require the employee to submit the proper paperwork. But if the employee has not asked for leave, the employer should follow the interactive process recommended for reasonable accommodations under the ADA. 

For more information about the FMLA and ADA, see EEOC's The Family and Medical Leave Act, the ADA, and Title VII of the Civil Rights Act of 1964.

Questions on how to engage in the interactive process? Contact JAN for assistance. We are happy to help.