The fact that an employee receives FMLA leave does not, according to the Third, Circuit, equate to a finding that the employee is disabled from working for purposes of the Rehabilitation Act. Similarly, the fact that FMLA leave was approved does not demonstrate that an employee has a record of a disability. A "serious health condition" within the meaning of the FMLA is "a different concept" than the term "disability" and thus both must be analyzed separately. 29 CFR 825.702(b).
Analyzing the circumstances, the Third Circuit in Nicholson v. West Penn Allegheny Health System, No. 07-4354, 2008 U.S. App. LEXIS 22049 (3d Cir. Oct. 21, 2008)(non-precedential) found that Ms. Nicholson's FMLA-covered illness (PTSD, depression as a result of being a victim of a violent crime) was not a disability because it did not preclude her from working in a wide range of jobs. Additionally, because her illness was not a disability Nicholson could not prove that she was discriminated against for having a record of a disability.
Comment: Courts will not assume that an FMLA-covered "serious health condition" also constitutes a "disability" within the meaning of the Rehabilitation Act and/or the Americans with Disabilities Act (ADA). To be disabled from working, an individual must be precluded from working a wide range of jobs. An FMLA-covered "serious health condition," in contrast, merely requires that the eligible employee be unable to perform one or more essential functions of their job. As such, a "serious health condition may involve an illness or health condition that falls far below the level of a "disability." Of course, it is possible that a health condition is both an FMLA-covered "serious health condition" and an ADA-covered "disability." In that case, if proved, the employee would be entitled to the benefits of both the FMLA and the ADA/Rehabilitation Act.