In this article series comparing and contrasting various aspects of the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), we have covered exceptions to both laws such as disqualifying events, undue hardship (ADA only) and certain situations regarding substance abuse.
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Here, we look at other exceptions under these laws. These include the "direct threat" exception under the ADA and a spousal exception under the FMLA.
ADA: Direct threat
If the employee with a disability poses a direct threat to the health or safety of himself or herself or others in the workplace (e.g., a significant risk that cannot be eliminated by a reasonable accommodation), the employer need not accommodate the disabled employee.
A "direct threat" means a significant risk of substantial harm. An employer cannot refuse to hire or fire an individual because of a slightly increased risk of harm to themselves or others, or because of a speculative or remote risk.
The determination that an individual poses a direct threat must be based on objective, factual evidence regarding the individual’s present ability to perform essential job functions. If an applicant or employee with a disability poses a direct threat to the health or safety of himself or herself or others, the employer must consider whether the risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.
FMLA: Both Spouses, One Employer
When both spouses work for the same employer, the full amount of leave is limited to an aggregate of 12 weeks for the birth, adoption, or foster care placement of a single child, or to care for the employee’s parent with a serious health condition.
When both spouses work for the same employer, the aggregate amount of leave that can be taken by both spouses is 26 weeks in a single 12-month period for servicemember caregiver leave or a combination of qualifying exigency leave and servicemember caregiver leave. The aggregate number of workweeks of leave to which both spouses can take for qualifying exigency leave is only 12 weeks.
Note that each spouse is still entitled to a full 12 weeks of leave (less any leave taken for birth or placement of a child or to care for a parent) for their own serious medical condition or a serious medical condition of their spouse or child.
Next article: How FMLA and ADA interact with your attendance policies