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If ADA Applies, More Time Off May be Necessary When Employee is Coming Off FMLA

March 30, 2022

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

Just recently the EEOC settled with a trucking and property management company who terminated an employee after they exhausted their FMLA leave and were unable to return to work.  In the situations before the EEOC, the company terminated one employee with 30 years tenure who needed an additional three weeks off and another employee with 20 years tenure who simply needed an additional week.

The logic under the ADA is that an employee who cannot return to work after an FMLA leave with or without a reasonable accommodation is an employee who would not be qualified under the ADA.  Further, there were two U.S. Federal Court of Appeals, one for the 7th Circuit and the other from the 5th Circuit, discussing what type of leave would not be extendable.  In Severson v. Heartland Woodcraft, Inc., No. 14-CV-1141 (7th Circuit Court of Appeals, 9/20/17),  the employee took FMLA for back issues/surgery and took the full 12 weeks.  The employee then asked for an additional two or three months to recover.  The company said no and terminated the employee, with the proviso that the employee can reapply when able to work again.  The court, on appeal, stated that “a multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.”

In the second case, (Drake v. Spring Independent School District, No. 20-20376 (5th Circuit Court of Appeals, 7/27/21), an employee exhausted their FMLA leave and did not provide a return to work time frame.  The employee was terminated and sued.  On appeal, the 5th Circuit Court of Appeals agreed with the lower court’s ruling, agreeing that because the employee “was out of leave and could not provide a return date, … no accommodation existed.”

However, having a policy of not providing any additional leave when an FMLA leave is exhausted can be held as creating a liability for the employer. The trucking case is a good example.  “Policies that lead to the automatic termination of employees immediately upon the expiration of FMLA leave conflict with the ADA — specifically, its requirement that an employer engage in an interactive process with an employee to determine whether an accommodation that does not create an undue hardship is possible,” EEOC regional attorney Marsha Rucker said of the settlement. “Additional leave can be a reasonable accommodation.”

So, what should an employer do?  As Jacqui Schulte of Jacqulyn G. Schulte, PLC recommends, “when an employee exhausts (or is not eligible for) FMLA leave, the employer needs to administer its non-FMLA leave of absence policy.  This policy is critically different from FMLA leave.  A non-FMLA leave policy can – and should – say that only employment is protected, not an employee’s job position (which FMLA would protect).  Non-FMLA employment protection policies can extend up to nine months (following FMLA protection) or one year (without FMLA protection) because only employment is protected.  Since the job position is not protected, if the employer needs to fill the position while the employee is out on non-FMLA leave, once the position is filled, the employer must notify the employee the same and that they are considered ‘displaced’.“

Compensation and benefits are determined by benefit plan documents.  This approach allows the employee, if the plans so state, to have short-term disability and then long-term disability benefits, if they qualify.  The employee would be on an unpaid status on payroll and after one year rolled off the active employee list if not rehired to a new job they are qualified by the employer.

Therefore, as a displaced employee, prior to their return to work they must review and apply/interview for any open position for which they are interested and qualified (with or without accommodation); meaning secure a new position upon returning to work.  Failure to identify and be hired in a new position could result in termination.   Whenever this situation arises, it is highly advisable to work the process out with legal counsel to ensure that the process is done properly and legally. 

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