Reasonable Accommodation Is the Second Most Litigated Employment Issue
By basis alleged, disability ranked second across the agency's merits filings in FY2025 with 35, behind sex and pregnancy at 42 and ahead of retaliation at 31. Texas employers file into roughly 10% of all EEOC charges nationally — the largest share of any state.
The agency secured $660 million for workers in FY2025, including a record $528 million through pre-litigation resolution. Most of that exposure landed on employers who never saw a courtroom.
Sources: EEOC Office of General Counsel FY2025 Annual Report; EEOC FY2025 performance reporting.
The Leave Decision Sequence
Nearly every leave claim Faulkner HR Solutions reviews traces to a step taken out of order rather than a rule nobody knew. The sequence below is published so an employer can run it internally on the next request that arrives.
| Step | Checkpoint | Question | What most employers miss |
|---|---|---|---|
| 1 | Coverage | Is the employer covered, and is this employee eligible? | FMLA covers public agencies at any size. Private coverage turns on the 50/75-mile test. ADA coverage begins at 15 employees and does not depend on FMLA status. |
| 2 | Designation | Does this absence qualify, and has it been designated in writing? | FMLA runs whether or not the employer designates. Failing to designate usually means the leave was consumed and the employer received no credit for it. |
| 3 | Concurrency | What else runs at the same time? | Paid leave, workers' compensation, and short-term disability may run concurrently with FMLA. The organization's own policy governs where it is more generous. |
| 4 | Accommodation | Does an ADA obligation begin, continue, or survive exhaustion? | ADA leave has no fixed duration and can extend past FMLA exhaustion. Treating exhaustion as the end of the obligation is the most common single error. |
| 5 | Interactive Process | Has the exchange been documented rather than assumed? | Limitation, essential functions affected, options considered, what was offered, and the reasoning behind any rejection. |
| 6 | Hardship | If denying, has undue hardship been analyzed and written down? | Undue hardship is a real defense and is more available to smaller employers. It requires an analysis on the record, not an assertion after the fact. |
| 7 | Independent Action | Is any adverse action supported by evidence predating the leave? | Leave does not confer immunity, and freezing all action carries its own exposure. The test is documentation and consistency. |
Check eligibility first with the FMLA eligibility checker, or run an open request through the ADA accommodation risk checker.
What Texas Employers Get Wrong About FMLA and ADA
- Designation. FMLA runs whether or not the employer designates it. Failing to designate does not preserve the entitlement for later — in most cases the employer consumed the leave and received no credit for it.
- The interactive process is a process. ADA accommodation is a documented exchange: what limitation, which essential functions, what options were considered, what was offered, and why an option was rejected. The absence of that record turns a reasonable denial into a claim.
- Undue hardship is a real defense and it is available, particularly to smaller employers. It requires the analysis to happen and be written down, rather than asserted after the fact.
- Intermittent leave is manageable. Certification, recertification at permitted intervals, and consistent pattern tracking are lawful tools. Most employers use none of them, then act on frustration — which is the sequence that adds a retaliation charge to a leave claim.
- Leave does not confer immunity. An employee on protected leave can be included in a reduction, or disciplined for conduct predating the leave, when the reasoning is documented and consistently applied. Freezing all action creates a different exposure.
Leave and Accommodation Engagements
| Engagement | Scope |
|---|---|
| ADA interactive-process facilitation | Focused, per case — limitation and essential function analysis, options development, documented exchange, undue hardship analysis |
| FMLA and leave policy with tracking system setup | Standard — eligibility logic, designation practice, notice templates, certification handling, tracking without purchasing software |
| Leave administration advisory block | Prepaid hours, scoped to leave and accommodation matters |
| Ongoing coverage | Leave and policy interpretation on live decisions is included in every HR retainer tier |
The interaction is where systems break. FMLA, ADA, workers' compensation, and the organization's own paid leave policies overlap, and the overlap is where an employer runs one clock while a different clock is the one that matters. Step 3 of the sequence addresses this explicitly.
Not included: legal advice or representation; medical certification review or medical judgment; third-party leave administration or claims processing; workers' compensation claims handling; benefits continuation administration.
FMLA and ADA in the Public and Nonprofit Sectors
Cities, counties, and special districts carry additional layers: civil service rules where applicable, Chapter 143 considerations for police and fire in covered cities, USERRA obligations at higher frequency than most private employers see, and public records exposure on anything documented. That last point cuts both ways — the record is discoverable, which is exactly why it should be written well the first time.
Nonprofits frequently sit below the FMLA employee threshold and conclude no obligations exist. That overlooks ADA coverage beginning at fifteen employees, and it overlooks the organization's own written policies, which create enforceable expectations regardless of statutory coverage.
Frequently Asked Questions
Does FMLA apply to my organization?
Federal FMLA generally applies to private employers with 50 or more employees within a 75-mile radius, and to public agencies regardless of size — including cities, counties, and special districts. Public sector employers are frequently surprised by the second part. Individual employee eligibility is a separate test involving length of service and hours worked.
Can we terminate an employee who is on FMLA leave?
Leave does not create immunity from a decision that would have occurred regardless, but the burden of demonstrating that rests on the employer, and documentation predating the leave is what carries it. Discharge and constructive discharge was the most frequently raised issue in EEOC merits suits in FY2025, appearing in 64 filings, which is why a file review before acting is worth the hour.
What is the ADA interactive process?
A documented exchange between employer and employee regarding a requested accommodation: the limitation, the essential functions affected, accommodations considered, what was offered, and the reasoning behind any rejection. It is a process rather than a form, and documenting it is the protection. Reasonable accommodation was raised in 40 EEOC merits filings in FY2025, second only to discharge.
How do we handle intermittent FMLA that looks like a pattern?
Certification, recertification at permitted intervals, and consistent tracking are lawful and available. Treating suspicion as proof is not. Most employers use none of the available tools and then act on frustration, which converts a leave question into a retaliation charge.
Do we have to grant every accommodation request?
No. The obligation is to engage in the interactive process and provide a reasonable accommodation absent undue hardship. Undue hardship analysis is genuinely available, particularly for smaller employers, but only when it is conducted and documented rather than asserted.
What is the difference between FMLA leave and ADA leave?
FMLA provides a defined entitlement to job-protected leave for eligible employees at covered employers. ADA leave arises as a possible reasonable accommodation, has no fixed duration, and can extend beyond FMLA exhaustion. An employer treating FMLA exhaustion as the end of its obligations is exposed on the ADA side. This is step 4 of the Leave Decision Sequence.
We get a leave question once or twice a month. What level of support fits?
A prepaid advisory block scoped to leave matters. If the questions become weekly, a retainer costs less than the block. The scoping call gives you that comparison directly.
Related Services
Get the Answer Before the Decision, Not After the Charge.
The leave questions keep arriving. Prepaid hours or a retainer — twenty minutes tells you which one costs less at your volume. This page describes HR consulting services, not legal advice.