EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: FMLA; Reasonable Accommodation---Leave; Medical Exams and Inquiries

March 25, 2008

Richard M. Brennan
Senior Regulatory Office
Wage and Hour Division
Employment Standards Administration
U.S. Department of Labor
Room S-3502
200 Constitution Avenue, N.W.
Washington D.C. 20210

Re: FMLA NPRM: RIN 1215-AB35

Dear Mr. Brennan:

The Equal Employment Opportunity Commission (EEOC) submits this letter to the Department of Labor (DOL) in response to DOL’s proposal to revise the regulations implementing the Family and Medical Leave Act (FMLA). 73 Fed. Reg. 7876 (February 11, 2008).

As you know, the EEOC enforces the federal laws that prohibit employment discrimination, including Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., which prohibits discrimination on the basis of disability, and Title VII of the Civil Rights Act of 1964, as amended (Title VII), 42 U.S.C. § 2000e et seq., which prohibits discrimination on the bases of race, color, religion, sex, and national origin. The EEOC also has responsibility under Executive Order 12067 to coordinate the federal government’s enforcement of laws, executive orders, regulations, and policies that require equal employment opportunity without regard to race, color, religion, sex, national origin, age or disability. 43 Fed. Reg. 28967 (July 5, 1978). The EEOC provides the following comments on discrete issues concerning the overlap between the FMLA and the ADA. The comments are listed in the bullets below.

Suggested Modifications to Preamble Discussion of FMLA and ADA

• Substitute the word “leave” for the term “time off” when discussing the ADA (pages 7924 and 7925).
  • Explanation: The ADA does not use the term “time off,” although the FMLA statute and regulation use it. The ADA itself uses the term “leave,” as do the EEOC’s interpretive guidance and various EEOC sub-regulatory and technical assistance documents.
• Add “use of accrued paid leave” to the first sentence of first full paragraph on page 7925 and citation to EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, as revised, October 17, 2002, at text preceding Q&A 17; Q&A 21 (discussion on leave as reasonable accommodation).
  • Explanation: This is consistent with EEOC’s description of leave as a reasonable accommodation in the interpretive guidance to EEOC’s Title I regulation, see 29 C.F.R. Pt. 1630, App. § 1630.2(o) (definition of “reasonable accommodation"), and in the Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (ADA), http://www.eeoc.gov/policy/docs/accommodation.html at text preceding Q&A 17; Q&A 21.
  • Accrued paid leave may be used as a reasonable accommodation if an employer uses it in a manner, or for a purpose, beyond the normal leave policy. For example, an employer may allow an employee to use accrued sick leave to receive disability-related training, such as training on the use of a service animal, when that is beyond the written policy. This would be a reasonable accommodation.
• Add “without interfering with the employee’s ability to address his/her medical needs” to 2nd paragraph, 3rd sentence on page 7925: “Generally, unpaid leave is explored as a reasonable accommodation only after examining, through the interactive process, whether reasonable accommodations can be made to the employee’s job to keep the employee at work [added language: without interfering with the employee’s ability to address his/her medical needs].”
  • Explanation: The addition clarifies that while it is permissible to provide an alternative reasonable accommodation in lieu of requested leave, the accommodation must not interfere with the employee’s ability to address medical needs if it is to be effective. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, as revised, October 17, 2002, at question 20.

Other Comments

• We are supportive of proposed 825.306(d), stating that employers are not prevented from following the procedures under the ADA for requesting medical information where a serious health condition may also be a disability. We have received questions from employers who are worried that they will violate the FMLA if they follow the ADA’s procedures for requesting medical information in these circumstances.
• On page 7921, the preamble refers to a commenter’s claim that the FMLA’s current prohibition on second or third opinions on fitness-for-duty certifications conflicts with the ADA. We do not view this prohibition as a conflict with the ADA. As written, the preamble/proposed regulation already addresses our highest priority by making clear that any fitness-for-duty exam required by the employer must be job-related and consistent with business necessity as defined by the ADA (825.310(b)). Unlike the FMLA, the ADA does not expressly regulate second and third opinions. DOL is free to impose stricter requirements under the FMLA for obtaining medical information than those required by the ADA.
  • It would be helpful for DOL to explain that an employer will not violate the FMLA, even if it requires a second opinion, if it follows the ADA’s requirements for obtaining medical information from an employee who used leave as an ADA reasonable accommodation.
• Finally, the EEOC’s Fact Sheet on FMLA/ADA/Title VII at Q&A 10 states that employers will not violate the ADA by asking for the information specified in the FMLA certification form. Because the NPRM is proposing changes to the form, including the addition of the term “diagnosis,” we suggest clarifying that these changes do not alter the fact that employers will not violate the ADA by asking for the information specified in the proposed FMLA form. The fact that the form now specifically mentions “diagnosis” does not violate the ADA; nor do any of the other proposed alterations to the form. The information requested on the form is still strictly limited to the particular serious health condition for which the employee is seeking leave and is therefore job-related and consistent with business necessity.

Please do not hesitate to contact me at 202-____, Peggy Mastroianni, Associate Legal Counsel, at 202-____, or Carol Miaskoff, Assistant Legal Counsel, at 202-____with any questions.

Sincerely,

/s/

Reed L. Russell
Legal Counsel

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