February 15, 2022
Don’t Draw a Bright Line in the Sand: An FMLA / ADA Reminder
The Family and Medical Leave Act (FMLA) provides an eligible employee with up to 12 workweeks of job-protected leave for a variety of reasons, including for the employee’s own serious health condition. An employer has a policy that if an employee is not medically released to return to work (RTW) after 12 workweeks of FMLA leave, the employee will be terminated. So, what’s the problem?
None under the FMLA. But the Americans with Disabilities Act (ADA) might be a different story. The U.S. Equal Employment Opportunity Commission (EEOC) recently reminded us, “Policies that lead to the automatic termination of employees immediately upon the expiration of FMLA leave conflict with the ADA…the ADA can provide additional protection to employees beyond that required by the FMLA…Additional leave can be a reasonable accommodation.”
The Company was ordered to pay $65,000 to two employees that was wrongfully terminated under the policy.
If you are an FMLA covered employer (have employed at least 50 employees for 20 or more weeks in this or the preceding calendar year), review the FMLA policy in your Employee Handbook, which you must have if you have an Employee Handbook. If you have a “bright line” statement that reads an employee “will be” or “shall be” terminated or discharged from employment if the employee is unable to RTW within a certain period of time, even if it is six months or a year, reconsider it. Talk to your company’s legal counsel. Consider using the word “may” instead of “will” or “shall” to demonstrate your willingness to engage in an interactive dialogue and conduct an individualized assessment.
If you are not an FMLA-covered employer, you are not off the hook! The ADA covers employers with 15 or more employees. So, look at your leave of absence or any attendance related policies. If you have drawn any bright lines in the sand, reconsider those as described above.
Wait, there’s more! The penalties for the employer went beyond monetary. In addition to paying $65,000, the employer was ordered to:
- provide training to their employees on their obligations under the law;
- develop, implement and maintain anti-discrimination and anti-retaliation policies;
- agree to not engage in any unlawful discrimination or retaliation because of disability;
- post notices on their bulletin boards informing employees of their right to contact the EEOC if they feel they have been discriminated or retaliated against.
Want more FMLA tips? Click here to register for last months’ recorded webcast, “Forgive my last absence: An FMLA Update.” $25 pp. 75 minutes. Pre-approved by HRCI and SHRM for 1.25 credits.