FMLA, ADA, and Title VII

This document contains information relating to the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act (Title VII).


The FMLA and the ADA both required covered employers to grant medical leave to an employee in certain circumstances.  The FMLA and Title VII both have requirements governing leave for pregnancy and pregnancy-related conditions.  In addition, under Title VII, employers must not discriminate on the basis of race, color, religion, sex, or national origin when they provide family or medical leave.


The Department of Labor enforces the FMLA.  The EEOC has no enforcement responsibility for the FMLA.  The EEOC enforces the ADA and Title VII.  The FMLA went into effect on August 5, 1993 and the FMLA final rule became effective on April 6, 1995.  During FMLA leave, an employer must maintain the employee’s existing level of coverage under a group health plan.  AT the end of the FMLA leave, an employer must take an employee back into the same or an equivalent job.

Entitled Leave Under FMLA
Under the FMLA, an eligible employee may take up to 12 weeks of leave during any 12-month period for one or more of the following reasons:
  • The birth of a child, and to care for the newborn child
  • The placement of a child with the employee through adoption or foster care, and to care for the child
  • To care for the employee’s spouse, son, daughter, or parent with a serious health condition
  • Because a serious health condition makes the employee unable to perform one or more of the essential functions of his or her job

Employers covered by FMLA, ADA, and Title VII
The FMLA covers private employers with 50 or more employees.  The ADA and Title VII cover private employers with 15 or more employees.  Thus, only those private employers with 50 or more employees are covered concurrently by the FMLA, the ADA, and Title VII.


State and local government employers are covered by the ADA and the FMLA regardless of the number of employees.  State and local government employers are covered by Title VII if they have 15 or more employees.


Not all employees protected by Title VII or the ADA are entitled to leave under the FMLA.  Employees protected by Title VII or the ADA must be independently “eligible” for FMLA leave.  “Eligibility” for FMLA leave depends on several factors, for example, length of service.  In addition, an individual must be employed by an FMLA-covered employer with 50 or more employees to obtain FMLA leave.


Health Condition and Disability
A serious health condition under the FMLA is an illness, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.  An FMLA serious health condition is not necessarily an ADA disability.  An ADA disability is an impairment that substantially limits one or more major life activities, a record of such an impairment, or begin regarded as having such an impairment.


Some FMLA serious health conditions may be ADA disabilities, for example, most cancers and serious strokes.  Other serious health conditions may not be ADA disabilities, for example, pregnancy or a routine broken leg or hernia.  This is because the condition is not an impairment, or because the impairment is not substantially limiting.


In addition, the fact that an individual has a record of a serious health condition does not necessarily mean that he or she has a record of an ADA disability.  Under the ADA, an individual must have a record of substantially limiting impairment in order to be covered.


Just because someone has a serious health condition also does not mean that eth employer regards him or her as having an ADA disability.  To satisfy this prong of the ADA definition of disability, the employer must treat the individual as having an impairment that substantially limits one or more major life activities.


To determine if an individual has an ADA disability, all pertinent evidence, including any information about whether the individual has or had a serious health condition should be considered.  Under the FMLA regulations, employers must allow EEOC investigators to review pertinent FMLA medical certifications and recertifications, and other relevant materials, upon request.


ADA Leave
The ADA does not limit employees to 12 weeks of leave per year.  The FMLA does not mean that more than 12 weeks of unpaid leave automatically imposes an undue hardship for purposes of the ADA.  An otherwise qualified individual with a disability is entitled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leave would not impose an undue hardship on the operation of the employer’s business. To evaluate whether additional leave would impose an undue hardship, the employer may consider the impact on its operations caused by the employee’s initial 12-week absence, along with the undue hardship factors specified in the ADA.


Under the ADA, the employee is entitled to return to the same job unless the employer demonstrates that holding the job open would impose an undue hardship.  In some instances, an employee may request more leave under the ADA even after the employer has communicated that it cannot hold the employee’s job open any longer.  In this situation, the ADA-covered employer must see if it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned without undue hardship to continue his or her leave.  If an equivalent position is not available, the employer must look for a vacant position at a lower level.  Continued accommodation is not required if a vacant position at a lower level is also unavailable.


The ADA’s reasonable accommodation obligation does not require a covered employer to give an employee time off to care for a spouse, son, daughter, parent, or other individual with a disability with whom the employee has a relationship.  However, an employer would be required to provide leave on the same terms as it normally provides leave to employees who need to care for someone who is ill.


ADA Facts
Employers may not ask job applicants about the existence, nature or severity of a disability or require medical examinations of applicants, until after making an offer of employment.  Applicants may be asked about their ability to perform specific job functions.  A job offer may be conditioned on the results of a medical examination or inquiry, but only if the examination or inquiry is required for all entering employees in similar jobs.  Medical examinations of employees must be job related and consistent with the employer’s business needs.


Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA, when an employer acts on the basis of such use.  Tests for illegal drugs are not subject to the ADA’s restrictions on medical examinations.  Employers may hold illegal drug users and alcoholics to the same performance standards as other employees.

Pregnancy Discrimination
The Pregnancy Discrimination Act

is an amendment to Title VII of the Civil Rights Act of 1964.  Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII.  Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.


An employer cannot refuse to hire a woman because of her pregnancy related condition as long as she is able to perform the major functions of her job.  An employer cannot refuse to hire her because of its prejudices against pregnant workers or the prejudices of co-workers, clients, or customers.

Pregnancy Leave
If an employer offers temporary or short-term disability leave, Title VII requires the employer to treat pregnancy and related conditions the same as non-pregnancy conditions.  An employee is protected by anti-discrimination laws regardless of how long she or he has been on the job, but an employee is not eligible for FMLA leave until she or he has been employed for 12 months.  An employer policy that denies pregnancy leave during the first year of employment, but provides leave for other medical conditions, would discriminate against pregnant women.  Additionally, a neutral policy that prohibits any employee from taking sick leave or short-term disability leave during the first year of employment could have a disparate impact on women and thus violate Title VII.


Pregnant employees must be permitted to work as long as they are able to perform their jobs.  If an employee has been absent from work as a result of a pregnancy related condition and recovers, her employer may not require her to remain on leave until the baby’s birth.  An employer may not have a rule which prohibits an employee from returning to work for a predetermined length of time after childbirth.


Employers must hold open a job for a pregnancy related absence the same length of time jobs are held open for employees on sick or disability leave.


Pregnancy Health Insurance
Any health insurance provided by an employer must cover expenses for pregnancy related conditions on the same basis as costs for other medical conditions.  Health insurance for expenses arising from abortion is not required, except where the life of the mother is endangered.


Pregnancy related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a fixed basis or percentage of reasonable and customary charge basis.


The amounts payable by the insurance provider can be limited only to the same extent as costs for other conditions.  No additional, increased, or larger deductible can be imposed.


Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.


Pregnancy Fringe Benefits
Pregnancy related benefits cannot be limited to married employees.  In an all-female workforce or job classification, benefits must be provided for pregnancy related conditions if benefits are provided for other medical conditions.


If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy related conditions.


Employees with pregnancy related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.

FMLA Questions/Complaints
For additional information about the FMLA, or to file an FMLA complaint, individuals should contact the nearest office of the Wage and Hour Division, Employment Standards Administration, US Department of Labor.  The Wage and Hour Division is listed in most telephone directories under US Government, Department of Labor.

Kansas City District Office
US Dept of Labor
ESA Wage and Hour Division
Gateway Tower II
400 State Avenue
Suite 1010
Kansas City, KS 66101-2414
District Director: Karen Chaikin
Telephone: 1.866.4.USWAGE


ADA and Title VII Questions/Complaints
For additional information about the ADA or Title VII, or to file a complaint, individuals should contact the nearest EEOC office.

The Kansas City Area EEOC Office
Gateway Tower II
4th & State Ave., 9th Floor
Kansas City, KS 66101
Phone: 913.551.5655
Fax: 913.551.6957
TTY: 913.551.5657
Director: Mr. George Dixon
Regional Attorney: Mr. Robert Johnson