Relationship to Other Entitlements
Nothing in the FMLA modifies or affects any Federal law prohibiting discrimination on the basis of race, religion, color, national origin, sex, age, or disability. An agency must comply with whichever statute provides the greater rights to the employee.
For example, in the case of an employee with a serious health condition under the FMLA who is also a qualified individual with a disability under the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), the FMLA and the Rehabilitation Act are to be applied simultaneously and in a manner that assures the most generous provisions of both Acts for the employee. Satisfying the requirements under the FMLA by granting 12 weeks of leave and restoring the employee to the same or equivalent position does not absolve an agency of any potential responsibilities to that employee under the Rehabilitation Act.
If an employee is a qualified individual with a disability under the Rehabilitation Act, the agency must make reasonable accommodations, etc., barring undue hardship. The Equal Employment Opportunity Commission has advised DOL that employers may consider FMLA leave already taken when deciding whether granting leave in excess of 12 weeks as an accommodation under the Rehabilitation Act poses an undue hardship. This does not mean, however, that more than 12 weeks of leave automatically poses an undue hardship under the Rehabilitation Act. Agencies must apply the full undue hardship analysis under the Rehabilitation Act to each individual case to determine whether leave in excess of 12 weeks poses an undue hardship.
An employee's right to be returned to the same or equivalent position under the FMLA applies to the position held at the time the employee commences FMLA leave. If an employee is unable to perform the essential functions of the same or equivalent position because of a disability, even with reasonable accommodation, the Rehabilitation Act may require the agency to make a reasonable accommodation when the employee returns. An agency may not change the essential functions of an employee's position in order to deny an employee's rights under the FMLA. However, an employee may voluntarily accept an alternative position (e.g., "light-duty" position) rather than use leave under FMLA. Additional questions on the Rehabilitation Act should be addressed to the Equal Employment Opportunity Commission.
An employee may receive workers' compensation and be absent from work due to an on-the-job illness or injury that also qualifies as a serious health condition under the FMLA. The absence on workers' compensation and FMLA leave may run concurrently. At some point, the health care provider managing care pursuant to the workers' compensation injury may certify that the employee is able to return to work in a "light duty" position. If the agency offers such a position, the employee is permitted, but not required, to accept