A recent legal analysis in HR Executive made a point that should worry more CEOs than it currently does: FMLA and ADA are two separate legal obligations, and companies that treat them as interchangeable are creating risk they don’t know they have.
That distinction sounds academic until you’ve sat inside enough audits to see how often it breaks down in practice. It’s one of the most common gaps I find — not because leadership doesn’t care, but because no one has ever mapped where FMLA administration ends and ADA obligation begins.
Here are five questions worth asking your own team this week.
1. Does your team know FMLA and ADA are different questions?
FMLA is a leave statute — it provides eligible employees with job-protected time off for a qualifying reason. The ADA is an antidiscrimination law requiring reasonable accommodation for a qualified employee with a disability, absent undue hardship. They frequently arise from the same situation. They do not always call for the same response.
In one 650-employee organization I audited, FMLA leave usage was concentrated overwhelmingly in just three departments — 94% of all FMLA hours companywide. That kind of concentration usually means one of two things: either those departments have genuinely higher medical need, or the FMLA and ADA questions aren’t being separated well enough to catch employees who need an ongoing accommodation rather than repeated leave. Either way, it’s worth knowing which.
2. Does your policy allow individualized assessment, or does it apply one rule to everyone?
A rigid, one-size-fits-all leave or attendance policy is efficient right up until it isn’t. The practical question in any accommodation situation is whether a defined period of leave, or some other accommodation, would let the employee return and perform the essential functions of the role without undue hardship — and that requires room for a case-by-case look, not a blanket rule applied the same way every time.
3. Is there an escalation protocol before an employment decision gets made?
End-of-leave decisions, fitness-for-duty questions, and attendance concerns tied to a disability should be reviewed through an ADA lens before any employment action is finalized — not after. In practice, that means someone with ADA training needs to be in the room before a termination or disciplinary decision goes out the door, not brought in afterward to explain the decision that was already made.
4. Is your documentation strong enough to survive a challenge?
This is where audits find the most exposure, and it’s also where the legal stakes are highest. Under the FMLA, interference claims don’t require proof of intent — the only question is whether the employee was denied leave they were entitled to. Under the ADA, claims often turn on the substance and timing of the interactive-process conversation itself: what was discussed, when, and by whom.
That means the file needs to show, at minimum: the original request, the reasons for any employer-initiated discussion, follow-up questions asked, medical information received, the essential job functions considered, alternative accommodations discussed, and the undue-hardship analysis if one was needed. A thin file isn’t just an administrative gap — it’s the difference between a defensible decision and an indefensible one.
5. Do your managers know a “clean file” on FMLA doesn’t mean the obligation is over?
This is the gap that catches the most companies off guard. An employee’s FMLA leave can end while their ADA accommodation need continues — a modified schedule, additional breaks, a temporary duty change. If the file closes the moment the leave does, without anyone asking whether an ongoing accommodation is still needed, the company hasn’t finished the process. It’s just stopped paying attention to it.
The Real Risk Isn’t the Law — It’s the Handoff
Every one of these questions comes back to the same root cause: FMLA and ADA obligations are usually administered by the same person, using the same file, and it’s easy to assume that closing one closes both. It doesn’t.
If you’re not confident your organization would answer all five of these questions well, that’s worth a conversation — before it becomes a claim.
Vanessa G. Nelson, CLRL, CEOI is the founder and president of Expert Human Resources LLC, specializing in FMLA/ESTA compliance audits and workplace investigations for organizations across Michigan.
