September 13, 2024
Intersectionality & Overlap: The ADA and FMLA
The EEOC’s recent lawsuit is yet another reminder that providing 12 workweeks of leave under the federal Family and Medical Leave Act (FMLA), may not (or probably is not) sufficient to serve as a reasonable accommodation under the Americans with Disabilities Act (ADA).
The lawsuit alleges the employer maintained a policy that treated any employee unable to return to work following the expiration of FMLA leave as a “voluntary resignation” resulting in termination. One disabled employee with pseudotumor cerebri (aka false brain tumor – a condition where too much cerebrospinal fluid accumulates in the skull) requested a brief extension of leave until her new specialty contact lenses arrived. She explained the lenses would arrive within 30 days of her FMLA leave expiration date, possibly in as soon as three days. Another employee with severe anxiety and bipolar disorder requested 30 more days of unpaid leave and provided medical documentation supporting her request.
The EEOC contends the employer refused to consider either request, instead terminating both employees pursuant to its policy, noting the employer also did not hire replacements for either until months later – after both employees began working for new employers.
Lessons learned.
Engage in an interactive dialogue. If your employee cannot return to work when their FMLA Leave expires, ask them to provide a doctor’s note indicating when the expected RTW date is, if known. As above, if it’s a few weeks or 30 more days, why can you not offer an extended leave of absence? Be able to explain how that would adversely impact your business operations.
Conduct an individualized assessment. You may be able to provide leave as a reasonable accommodation in some locations or for some jobs, but not others. Be able to explain why that is. In that defense, money or cost is probably your weakest argument.
Join us Wednesday, October 23rd from Noon – 1:15 ET for an “FMLA Update”. Pre-approved by HRCI & SHRM for 1.25 credits. $25 pp. Click here for the agenda and to register.
