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Your Employee Matters


By November 1, 2009No Comments

Employers generally understand that eligible employees are entitled to 12 weeks of job-protected leave for serious health conditions under the Family and Medical Leave Act. Too often, however, when this statutory leave right has been exhausted (or an employee is FMLA ineligible) employers believe that they have an absolute right to terminate the employee. However, if the Americans with Disabilities Act applies, summary termination might result in an expensive legal claim.

Under the FMLA, an eligible employee with a serious health condition is entitled to 12 weeks of leave. Employees who are ineligible (because they haven’t worked for the company for a year or lack 1,250 hours of service), or who have exhausted their 12 weeks, lose their right to job-protected leave under FMLA. Some serious health conditions might also be covered ADA-disabilities (indeed, this will be the case more often than before under recent amendments to the ADA).

If an employee’s condition is a disability and they don’t have the right to FMLA leave, consider these steps:

  • Provide additional leave as a reasonable accommodation without an undue hardship. If the doctor can’t identify any time period by which the employee can return, courts would usually not require additional leave. If the doctor identifies a time frame, consider whether additional leave will be workable from a financial, operational, and logistical perspective.
  • Consider offering an alternative open position or providing an accommodation to the employee’s own position that will permit a return to work Although return to work under FMLA contemplates an employee’s complete fitness for duty for their job if they have an ADA disability, you might want to provide an accommodation (such as elimination or redistribution of marginal functions, modifications to the workspace, scheduling accommodations, and the like). However, you’re not required to create a new job position or bump another employee from their job.
  • If return to work is not possible in the near term, retain the individual on the employee rolls without pay or benefits. The EEOC has ruled that this might be an appropriate accommodation if holding the job for the amount of leave still needed would be an undue hardship. Whether valid or not, the EEOC believes that it’s easier to qualify for future openings as an internal applicant rather than as a former or outside one.
  • Consult with counsel when in doubt. Recent EEOC press releases publicizing money paid by employers in settling EEOC lawsuits show that the agency is interested in pursuing these “follow-on” ADA claims.

Consulting with employees and considering options can help you avoid ADA claims or, at the very least, provide helpful evidence demonstrating your good faith in the event of a lawsuit. Be sure to document your efforts to make an accommodation.

Compliments of Worklaw® Network firm Shawe Rosenthal (