The ADA and FMLA often work hand in hand, but unionized employers must conduct another layer of analysis by examining any applicable collective bargaining agreement and complying with NLRA obligations. Littler attorneys Elisabeth Ambrozaitis, Maura Mastrony and Emily Zaklukiewicz explain how employers with discretion to choose from multiple accommodations must bargain with the union and why even “minor changes” still warrant providing the union with notice prior to implementation.
The leave and accommodation processes can prove challenging for employers to navigate — often triggering a variety of federal, state and local legal obligations. Further, employers with collective bargaining agreements and unionized workforces face another level of complexity.
While these legal obligations often interact harmoniously, there can be situations in which they overlap, creating conflict or confusion. It is important that employers understand how to tackle these intersecting legal obligations by spotting common accommodation issues, identifying what legal obligations may be at play when addressing those issues and knowing how to prevent and address conflicts among those varying legal obligations.
FMLA & ADA
Employers subject to the Americans with Disabilities Act (ADA) must provide reasonable accommodations to qualified individuals with disabilities to enable them to perform the essential functions of the job unless the accommodation would pose an undue hardship.
A reasonable accommodation is a change or adjustment to a job, work environment or the way things are customarily done that enables an individual to perform essential job functions, apply for a job or enjoy equal access to benefits and privileges of employment. Potential accommodations may come in various forms, including leaves of absence (intermittent or continuous), job changes (e.g., schedule changes or task modifications) or ergonomic adjustments (e.g., certain equipment, devices, workspaces).
The employer generally has the ultimate burden to recognize an employee’s need for an accommodation, and employees and their representatives do not have to use any “magic words” to put their employer on notice of their potential need for an accommodation. Indeed, an employee does not need to explicitly or formally make such a request and certain circumstantial cues, such as performance or attendance issues an employee attributes, even in part, to potential medical issues, may be sufficient to put an employer on notice of the need for an accommodation. Further, accommodation requests do not necessarily need to come directly from the employee; such requests can also come from a family member, the union or the employee’s healthcare provider.
The first step to ensuring compliance with your leave and accommodation obligations is ensuring your management team is trained on recognizing the various situations in which the potential need for an accommodation may arise.
The federal Family and Medical Leave Act (FMLA) provides 12 weeks of unpaid, job-protected leave for specified family and medical reasons. The FMLA generally applies when an employee works for a covered employer, has worked for at least an accumulated 12 months, has worked at least 1,250 hours in the 12-month period prior to the first day of leave and has a qualifying reason for the leave. It is critical to also check the requirements of state FMLA-equivalent laws, which may have different eligibility requirements and provide greater rights and benefits than the federal FMLA.
2025 Delivered Operational Shock, Not Just Policy Shifts, for HR Compliance
Expansive worksite enforcement, rapid work authorization changes and AI-enabled fraud created unprecedented instability
Read moreDetailsInterplay between the ADA & FMLA
The ADA and FMLA often work hand in hand, such as when (1) an employee qualifies for state or federal FMLA and such time off constitutes a reasonable accommodation; (2) an employee is ineligible for state or federal FMLA but is eligible for leave as an accommodation; or (3) an employee has exhausted their FMLA leave but is eligible for additional leave as an accommodation. However, unlike the FMLA, which has specific employee length-of-service requirements that must be met before an employer is obligated to comply with it, an employer’s obligations under the ADA take effect immediately upon the hiring of an employee.
Further, the ADA is a more individualized process than the FMLA. While the FMLA focuses on an employee’s specific medical condition and the provision of leave, the ADA provides for an interactive process and accommodation. Finally, unlike the FMLA, which mandates a set and non-negotiable amount of leave for an employee’s serious health condition, negotiation may be an option under the ADA, particularly because employees are entitled only to a reasonable accommodation, not their preferred accommodation.
The National Labor Relations Act (NLRA) & collective bargaining agreements (CBAs)
Employers with unionized workforces must conduct another layer of analysis when facing leave and accommodation requests: examining any applicable CBA and complying with their legal obligations under the NLRA.
Unionized employers must first look to any applicable CBA that is in effect to see if it contains any specific provisions surrounding leaves and accommodations. The ADA and FMLA generally set the floor for rights contained in a CBA. However, some CBAs may provide rights and benefits that extend beyond what the law requires.
The ADA prohibits employers and unions from entering into CBAs that discriminate against individuals protected by the ADA. Additionally, employees cannot waive their prospective rights under the FMLA in a CBA. However, an employer may be required to observe any employment benefit program or plan negotiated into a CBA that provides greater rights to employees than the rights established by the FMLA and/or ADA. For instance, certain CBA provisions may mandate and/or limit certain accommodations (e.g., light duty or leaves of absence), mandate and/or permit leave for a set term beyond that permitted under the FMLA, provide for wage replacement or other benefits during leave, or impose specific reinstatement requirements.
In addition to adhering to any CBA provisions relevant to leaves and accommodations, it is critical that the employer still comply with the NLRA, particularly with regard to any direct dealing restrictions or bargaining obligations. Under the NLRA, the union is the exclusive representative of the employees and the employer is prohibited from dealing directly with employees concerning the terms and conditions of employment. The NLRA also prohibits the employer from changing the terms and conditions of employment without offering the union an opportunity to bargain over the proposed changes, or the effects of those changes, as applicable. Thus, while the ADA encourages employers to engage in interactive dialogue and the exchange of information with an employee in connection with efforts to reasonably accommodate the employee, the NLRA prohibits direct dealing with represented employees. Consequently, employers are often left uncertain how to proceed given the potential conflicting obligations.
Consistent with the National Labor Relations Board’s general counsel memo 92-9, as well as the Equal Employment Opportunity Commission’s “ADA Technical Assistance Manual on Employment Provisions,” employers with unionized workforces should not deal directly with employees over ADA matters.
In an excess of caution, the employer should always involve the union with an employee’s reasonable accommodation request and, in some instances, may be obligated to bargain over certain accommodation requests. There are two exceptions to the requirement to bargain over the accommodation request: (1) if the change in working conditions is mandatory under the ADA; or (2) if the proposed change is “relatively minor.” If an employer has “discretion” to choose from multiple accommodations, the accommodation is not “mandatory” and the employer must, therefore, bargain with the union. Examples of “minor changes” include increasing an employee’s break time by five minutes or providing a standing desk. Even if the accommodation is mandatory or the change minor, however, it is still advisable to provide the union with notice of the accommodation and change prior to implementation.
Other potential legal obligations
In addition to the ADA, FMLA and NLRA, employers must also check whether they have leave or accommodation obligations under applicable workers’ compensation laws, state FMLA, sick leave and anti-discrimination laws, short-term or long-term disability insurance plans and their employee handbook.
Pathway to successful compliance
Successful compliance with the myriad legal obligations surrounding accommodation requests requires preparation. Employers should have a plan in place to ensure they identify, consider and meet all legal obligations when responding to accommodation requests. This plan can include getting ahead of potential conflicts between and among the ADA, FMLA and NLRA through collective bargaining, having standardized procedures and criteria for accommodation requests, consulting relevant laws and staying apprised of changes, and, where appropriate, involving the union in discussions surrounding leaves and accommodations.
While the cross-section of legal obligations may appear daunting at first, preparation and knowledge are key for employers to comply with their legal obligations related to accommodation requests.
Elisabeth Ambrozaitis
Maura Mastrony
Emily Zaklukiewicz
