Thursday, May 28, 2020
Tuesday, 14 March 2017 11:43

Employee Leave: It’s Not Just About the FMLA

Written by Stephen Senn, J.D. and Amanda Walls, J.D.

Employee Leave

A recent court case reminds us of the potential legal liability regarding employee leave.

The term “Employee Leave” immediately brings to the mind of most HR professionals the Family and Medical Leave Act (FMLA) and the FMLA procedures of their organization. But, it is also important to consider leave requests in light of the Americans with Disabilities Act (ADA).

A recent Florida federal court case, Walker v. NF Chipola, LLC (N.D. Fla. March. 28, 2016), presents a cautionary tale for employers who assume the obligation to provide employees with job-protected leave from work due to a medical condition is governed solely by the FMLA. Ms. Walker was a certified nursing assistant (CNA) for a nursing home. Supported by documentation from her physician, she requested six months of leave for surgery and recovery. The employer approved 12 weeks of leave as required by the FMLA, but did not approve the additional three months of leave. The employee was unable to return to her duties at the end of her FMLA leave, and was forced to either resign and be eligible for rehire, or be terminated. She resigned and later applied for rehire, but the employer did not offer her a position. She then sued – and won – on the basis of disability discrimination under the ADA.

One lesson of the Walker case comes from the refusal to rehire this individual. If she had been rehired, it is likely no lawsuit would have been filed. Allowing former employees who are unable to return to work at the end of an approved leave with the opportunity to apply for rehire is a good practice. But when the reapplication comes, it is prudent to find that individual a position, unless there is a good business reason against the rehire. The best way to win a lawsuit is to avoid being sued in the first place.

Other lessons can be drawn from the failed defenses in this case. For example, the employer argued it was not sufficiently clear that the employee had requested an ADA accommodation by seeking the additional three months leave. The court was not impressed by this assertion, since the employee’s original FMLA certification indicated she would need six months before she would be able to return to her duties. The judge’s order states: “[the nursing home] would have had to be exceedingly dense not to understand precisely what Mrs. Walker was asking for.”

The Court was also unconvinced that a leave of six months would present an undue hardship to the employer, because nursing homes employ many CNAs and there is high turnover in that position. Finding a spot for Ms. Walker when she was ready to return to work should not have been difficult, and there was no hardship to the nursing home during her leave because she was not receiving any pay or any benefits while out of work.

The biggest lesson of Walker is that while the FMLA places employers under certain obligations in specific circumstances, the obligations of an employer under the ADA can include allowing leave as a reasonable accommodation, and may provide leave beyond the circumstances where leave is mandated by the FMLA. Exhaustion of leave rights under the FMLA does not necessarily decide whether the employee might also have rights to additional leave under the ADA as a reasonable accommodation. Further, the ADA might require provision of leave time even if the FMLA does not apply. Smaller employers not otherwise subject to FMLA may still have to allow leave under the ADA. And larger employers that are subject to the FMLA must consider leave rights for employees who might not be eligible because they are new, part-time, or work at a smaller remote location.

The right to additional leave under the ADA is not unlimited. Courts typically reject employee arguments for indefinite leaves of absence under the ADA. See, e.g., Wood v. Green, 323 F.3d 1309 (11th Cir. 2003). An employee who exhausted FMLA leave who requests more time to recover, without giving a reasonable estimate of how much additional time, may be terminated. But if an employee near the exhaustion of FMLA leave presents a doctor’s note certifying that an additional few weeks or months are medically necessary, it is prudent for the employer to either grant that additional leave or, if the leave appears to be an undue burden, seek legal advice before taking action that may constitute an ADA violation.

Because this has become such a common problem, the EEOC has published Guidance entitled Employer- Provided Leave and the Americans with Disabilities Act, available at: publications/upload/ada-leave.pdf. This guidance emphasizes that the duty to reasonably accommodate under the ADA applies to leave policies, and may require departure from those policies to the extent necessary to reasonably accommodate an employee with a disability. Accordingly, employers who refuse to consider additional leave after FMLA leave is exhausted, or who fail to consider other potential accommodations as an option for an employee who cannot return to their prior position following an FMLA leave, are all red flags that the EEOC may consider as revealing an ADA violation.

The main point of the guidance is that leave can be required as a reasonable accommodation under the ADA if leave would allow the employee to return to employment without creating an undue hardship for the employer. Such leave can be required even if the employer: does not normally allow leave as a benefit, if the employee is not eligible for leave under the employer’s leave policies, if the employee has exhausted the leave available as an employee benefit or the leave requirements of the FMLA or other leavespecific laws, and if the employee is not eligible for leave under the FMLA.

Because the definition of disability is broader under the ADA than it used to be, virtually all employee requests leave for a medical condition should be considered as a potentially encompassing a request for an ADA accommodation. In the interactive process following a leave request, employers are permitted to obtain information needed to consider whether the leave should be allowed. Such information will be similar to what would be provided in connection with an FMLA leave request: the reason for the leave, the total time period needed for leave, and whether leave will be taken in a block or intermittently. Employees are obligated to cooperate during the interactive process.

Once leave is allowed, the time period of the leave should not be considered set in stone. Recoveries may take longer than originally estimated. If an employee is allowed three months, but later her health care provider says another 30 days is needed, the additional leave should be granted unless it would pose an undue hardship. When a leave has a fixed return date, the EEOC states the employer may not require regular updates from the employee, but can make occasional contact to ask how the employee is doing, confirm the anticipated return to work date, and determine whether any additional accommodations may be needed upon return.

The EEOC also recommends that form letters sent to employees who are nearing the end of the leave time should be modified to let employees know that if additional unpaid leave is needed as a reasonable accommodation for a disability, the employee should ask for it as soon as possible so that the employer may consider whether it can grant an extension without causing an undue hardship. Short of that, employers may simply encourage employees to notify the employer if they will not be able to return by the expected date for any reason, which should suffice to trigger the interactive process without need for the specific language the EEOC Guidance recommends. The EEOC also uses the guidance to reaffirm its position that 100 percent healed policies violate the ADA. Employees should be allowed to return to work when they can perform the essential duties of their position, even if they are still recovering, and even if they require some reasonable accommodation such as adjusting non-essential job duties to avoid occasional lifting or other physical requirements that can be adjusted without undue hardship.

In sum, leave rights under the ADA may apply even to employees who are not entitled to leave under the FMLA. Almost any kind of medicallyrelated leave should be considered in light of the ADA. For assistance with the interactive process and determination of what is or is not a reasonable accommodation, and at least before any denial of a leave request, legal counsel should be consulted.

Stephen Senn
Stephen Senn has been providing legal services to clients of Peterson & Myers, P.A. since 1991. His practice includes defense of employers in employment disputes.
Amanda Walls

Amanda Walls is an associate in the Lakeland office of Peterson & Myers, P.A. She focuses her practice on business law, particularly assisting employers with labor and employment issues.