Kinda like Welcome to the Jungle, except with a lot less GnR. Or maybe like the famous intersection of Hollywood and Vine, except, not famous and all. And, let’s face it, the only sightseeing at FMLA/ADA is done by dorks like us.
Who wants to pose with me for a selfie?
Well, I don’t know what a Florida federal court was thinking when it began this opinion with, “This employment-discrimination case arises at the intersection of the Americans with Disabilities Act and the Family and Medical Leave Act.” Certainly not, “Oh boy! Meyer’s gonna blog about this one.”
But, I digress…
There are betters ways to handle an employee who can’t return from FMLA than “resign or be fired.”
In Walker v. NF Chipola, LLC (opinion here), the plaintiff-employee asked for and received 12 weeks of FMLA leave for shoulder surgery. The defendant-employer granted it. So far, so good.
But, as you can imagine, at the end of her 12 weeks, the plaintiff was unable to return to work. So, what did the defendant do? It informed the plaintiff that she could resign or be terminated. D’oh! So, she resigned. However, for what it’s worth, the resignation left her eligible to be rehired.
An “exceedingly dense” employer fails to recognize the intersection of FMLA and ADA.
Enter the ADA, which requires employers to provide a reasonable accommodation to a qualified individual with a disability, where that accommodation is available and doing so will allow the individual to perform the essential functions of her job. Additional leave — even after FMLA is exhausted — may qualify as a reasonable accommodation.
So, why didn’t the defendant offer that here? Well, because the defendant was “exceedingly dense.” Tell ’em Judge Hinkle:
Ms. Walker told Chipola she needed surgery, would be out for about six months, and wished to return as soon as she was able. She delivered doctor’s notes confirming her need to be out and eventually clearing her to return to work on April 10, 2013. Chipola would have had to be exceedingly dense not to understand precisely what Ms. Walker was asking for: an accommodation of her disability consisting of unpaid leave through her return date—as it turned out, April 10, just over six months after she went out on leave….This would have imposed no burden at all on Chipola….Chipola’s policy, however, was not to extend leave at the end of an employee’s 12-week FMLA period. So Chipola forced Ms. Walker to resign.
Not only that, but the defendant never re-hired the plaintiff — even though it had one or more openings within the scope of plaintiff’s subsequent application that she would have accepted.
So, this intersection between FMLA and ADA, how does it work?
Floor’s yours, Judge Hinkle:
When Chipola demanded Ms. Walker’s resignation, Chipola believed, explicitly or in effect, that an employer who has provided the maximum required leave under the FMLA never has an obligation to accommodate an employee with a disability by providing extended unpaid leave. That is not the law.
First, nothing in the ADA suggests the requirement to provide a reasonable accommodation is somehow preempted by the FMLA. Instead, the statutes impose separate requirements, and an employer must comply with both. The EEOC rules make this clear. The EEOC’s enforcement guidance gives as an example an employee who needs 13 weeks of leave as a reasonable accommodation for a disability. The employee is entitled to 12 weeks under the FMLA (during which the employer must continue to provide appropriate benefits including, for example, whatever health insurance the employer had been providing) and an additional one week (not necessarily including benefits) under the ADA, unless providing that additional week would cause an undue hardship. Nothing in the ADA or the EEOC’s guidance suggests that one week is an outer limit.
What is the outer limit? Good question. I don’t know.
Better yet, it depends.
It depends on the specific facts and circumstances of the disability, the leave request, and your business. The line between leave as a reasonable accommodation and undue hardship can be tough to discern. Consider the following five steps when figuring this out:
- Remember the interplay between FMLA and ADA (i.e., trash those FMLA policies which require separation of employment when an employee exhausts leave and does not return);
- Communicate with your employee during her leave to get updates on her condition and return-to-work date;
- Have a good-faith interactive dialogue to discuss additional leave and other possible reasonable accommodations (e.g., light duty, reassignment to a vacant position); and
- Because the bar for undue hardship is set so high, err on the side of caution and provide additional leave.
Better yet, if in doubt about any of this stuff, call an employment lawyer. (Preferably one with a cool blog — relatively speaking, of course).