An employee goes on FMLA leave unable to work temporarily due to uncontrolled diabetes. The employee’s essential job functions include driving a forklift and working with other dangerous machinery. Many in the workplace are aware of the situation because the employee lost consciousness while working and had to be transported to the hospital by ambulance. Sound familiar?
Two weeks into the leave, the employee calls and says he is ready to return to work – he even has a doctor’s note stating he is ready to return to work without restrictions. You, knowing that the ADA does not require you to allow someone to work if they pose a “direct threat,” and fearing the employee may injure himself or others if he is not “fit for duty,” delay his return to work until he provides a more detailed second opinion from a doctor you select. The employee does not want to participate in a second opinion, he is ready to return now! The employee files a complaint claiming a violation of the FMLA citing 29 C.F.R. Section 825.312 claiming the employer did not give proper notice of the need to provide an extensive medical release and is tantamount to a second opinion, which the FMLA regulations prohibit.
Does the ADA trump the FMLA? Courts seem to disagree. See for example, Porter v. Alumoweld, 125 F.3d 243, 7 AD Cases 537 (4th Cir. 1997) (upholding employer’s right to require more than what FMLA permitted); Albert v. Runyon, 4 WH Cases2d 1128, 1137-38 (D. Mass. 1998) (requiring employers to comply with both the ADA and FMLA); Routes v. Henderson, 5 WH Cases2d 768, 798-99 (S.D. Ind. 1999).
This conflict is unnecessary and senseless. Why would two federal laws, enacted within 3 years of one another, impose conflicting obligations? The ADA adequately protects employees who impose unreasonable medical examination requirements. As we will point out repeatedly on this blog, workplace law is seriously flawed whenever it prevents an employer from acting reasonably and prudently. This is one of those instances.
Maybe new EEOC Commissioners Chai Feldblum, who was one of the principal drafters of the ADA and ADA Amendments Act, and Victoria Lipnic, who led the Department of Labor’s effort to revise FMLA regulations in 2009, can help persuade Congress, courts, or the EEOC and DOL, to resolve this conflict. Let’s have one rule, the ADA rule, and simply require all medical examinations or inquiries be “job-related and consistent with business necessity.”
By the way, some say we already do have one rule — see references in FMLA Regulations Section 825.312(h), the FMLA regulatory provision governing “Fitness For Duty Certifications.” That section includes statements that requirements under the ADA apply and, if an employee’s serious health condition may also be a disability within the meaning of the ADA, the FMLA does not prevent the employer from following the procedures for requesting medical information under the ADA.
From White Plains … waiting for some ADA/FMLA clarity.