Here, we present a workplace scenario where the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) may both apply. Then we provide relevant information about each law and what advice should be given to the employer or what action should be taken regarding ADA and FMLA interplay.

Facts

ADA FMLA leave interplay"Joe" is an employee of Good Fellows Industries, Inc., a large industrial employer. Joe has been out of work on FMLA leave for 10 weeks due to a serious back injury suffered in a skiing accident.

Joe’s injury is partially permanent and will substantially limit his ability to bend and lift. Before taking leave, Joe worked on the loading dock, lifting and carrying heavy cartons on a regular basis.

Today Joe appears at work with a fitness-for-duty medical certification from his doctor stating his ability to return to work, but that he is unable to do heavy lifting (an essential function of the job). Joe acknowledges that this is true. However, he wants to start working immediately.

Joe’s position could not be held open for 10 weeks, so it has been filled. Currently, there are no other vacancies for positions equivalent to the dock loader’s position, but there is a vacancy for which Joe is qualified—an assistant to the dock loaders that requires only light lifting.

What should the employer do?

The law

The ADA requires that an employee with a disability who is returning to work must be given the same position. If the employee’s former position is no longer available, the employer must accommodate by placing the employee in a vacant position (for which he is qualified) at a lower level and lower pay.

The employer is not required to promote the returning employee or “bump” another employee in order to make a position available.

The FMLA requires that employers provide each returning employee with the same position or with an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.

The FMLA does not require reinstatement of employees who are no longer able to perform the essential functions of the job. However, the returning employee may qualify for a reasonable accommodation under the ADA.

Advice for employer

Joe is protected by the ADA. If there are no equivalent positions within the company that Joe can perform (without heavy lifting), the employer may place Joe in a lower vacant position (pursuant to the ADA), such as the assistant dock loader’s job. Note that Joe must be qualified to perform the lower vacant job and the employer may pay Joe a lower salary (if the vacant position is a lower-paying job).

The employer may neither “bump” another employee to give Joe another position, nor is the employer required to promote Joe to give him a higher-level or -paying position.

For more details see our related article Reinstatement Rights under the FMLA and ADA.

This article is part of a series that explains the basic requirements of the two laws—and compares and contrasts them.