FMLA, Termination and the ADA: From the Archive

FMLA can be a difficult process to control.
FMLA can be a difficult process to control.

I am helping a client deal with a FMLA situation. It is causing them a great deal of heartburn, which reminded me how difficult dealing with the Family and Medical Leave Act is. Thus I wanted to republish this post from earlier this year to perhaps answer some questions. Thanks to Jeff Nowak for being gracious with his guidance.
Two of my favorite attorneys have produced articles about working with employees who are on FMLA leave. They both point out that FMLA decisions can be difficult ones and often the wrong decision can cost a company financially.

Can you fire?

The question that Daniel Schwartz asked in his post was “If an employee doesn’t return from FMLA at the end of 12 weeks can you fire them?” He said the easy answer is “yes” and he provided the U.S. DOL justification for that answer, which was:
“Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated “12 month period” no longer have FMLA protections of leave or job restoration.”
Sounds easy doesn’t it? Unfortunately, as we all know the “easy” answer is generally not the entire story. Schwartz points out that the Americans with Disabilities Act (ADA) often enters into the picture at this point making things much more complicated. He then quotes another favorite attorney, Jeff Nowak, who specializes in FMLA issues.

May call for an accommodation

Jeff points out that often the reason for FMLA leave is an injury or illness. At the end of 12 weeks the individual may not be ready or able to return to work. The ADAAA allows them to seek an accommodation of extended time in order to allow them to recover enough to be able to return to work. Often these requests would be considered to be “reasonable” and the company would be penalized if they did not allow them. Nowak, in a post in 2014, points out that the EEOC requires employers to make an evaluation of the hardship of a request accommodation. Jeff says the following factors should be considered in the evaluation of hardship:

  • Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
  • Lower quality and less accountability for quality
  • Lost sales
  • Less responsive customer service and increased customer dissatisfaction
  • Deferred projects
  • Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees
  • Increased stress on overburdened co-workers

Barring your ability to show that an undue hardship would be caused by the continued absence by an employee the company is under the obligation to grant the accommodation. However, this does not mean that the leave never has to end.

Just hope is not enough

I wrote in 2012 An Open-ended Leave is NOT a Reasonable Accommodation in which I said “A court case published at the end of August 2012 made it very clear that the court did not consider permanent leave, or at least a leave with an indeterminate end, to be a reasonable accommodation.” Jeff Nowak published a post in January 2016 which reaffirms this conclusion. In this case an employee expressed that she “hoped” to return to work at some point but could not provide any more definitive answer than that. The company terminated her and she subsequently sued. The court found the company was justified in its action.
Nowak gives us a warning however, that in order to terminate safely the company has to make sure that it has engaged in an interactive discussion with the employee to see if an accommodation is appropriate before closing  the doors on the case. As indicated above the hurdle of showing that extra leave is an unreasonable accommodation is a big one, so make sure you have had the documented discussions before making that decision to terminate the employee that originally took FMLA leave.

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