By: Jonathan R. Mook
As published by HRHero.com, a division of BLR, in the Virginia Employment Law Letter
Dealing with employees on Family and Medical Leave (FMLA) always is tricky. You can incur liability for interfering with an employee’s leave rights as well as for retaliating against an employee for seeking to exercise those rights or taking FMLA leave. Additionally, oftentimes an employee who qualifies for FMLA leave due to a serious health condition also may be disabled under the Americans with Disabilities Act (ADA). In this circumstance, you have two federal laws to worry about.
To help sort through these issues, we have asked DiMuroGinsberg partner, Jonathan R. Mook, who is a nationally recognized authority on the ADA and leave issues, to provide our readers guidance on how to avoid both FMLA and ADA claims.
Is it permissible to terminate an employee who is on FMLA leave?
The answer is “yes,” but proceed with care and caution. Sometimes, while an employee is out on FMLA leave, the employer discovers that the employee has not been doing his or her job or has been engaged in some type of workplace misconduct that would justify termination. In this circumstance, the FMLA allows an employer to terminate the employee because it is a reason other than the employee’s taking or being entitled to the leave. Bear in mind that any evidence of poor performance or misconduct should be sufficiently documented. That way, if, and when, an FMLA complaint with the Department of Labor or a lawsuit is filed, you will be able to present evidence that the basis for the employee’s termination was other than the employee’s taking (or need for) FMLA leave.
Even if it is permissible, do you advise the termination for misconduct of employees on FMLA leave?
I usually advise employers to wait and allow the employee to complete his or her FMLA leave. When the employee returns to work, then the employer can confront the employee with the information that the employer has obtained while the employee was out. During the meeting with the employee, the employer should ask the employee if there is any excuse for the employee’s misconduct or any mitigating factors. If there are not, the employer can then take a job action.
When is it permissible to terminate an employee who has been on FMLA leave and has returned to work?
Again, it is permissible to terminate an employee for reasons other than the taking of FMLA leave (or the need for such leave), such as poor performance or misconduct. The law does not require you to keep an unqualified or disruptive employee. The only circumstance in which an employer should consider letting an employee go for reasons relating to FMLA leave would be if the employee has falsified the FMLA documentation that the employee submitted to the employer to be approved for FMLA leave. If an employee engages in fraud with respect to the taking of FMLA leave (for example, taking FMLA leave to go on vacation rather than for medical treatment), then the employer has a basis for termination.
What steps should an employer take to prepare for the possibility that an FMLA leave request will be followed by a need for an ADA reasonable accommodation?
Normally, it is the responsibility of the disabled employee to request a need for an ADA accommodation. An employer need not anticipate an accommodation request. However, where an employee has a serious health condition that rises to the level of an ADA disability, an employee may request leave for medical treatment and, possibly, recuperation. If the employee is entitled to FMLA leave, the employer will provide the employee with the 12 weeks of FMLA leave (or longer under certain state laws). After the FMLA leave expires, the employee may be entitled to additional leave as a reasonable accommodation under the ADA.
What is the EEOC’s position on leave as an ADA accommodation?
The U.S. Equal Employment Opportunity Commission (EEOC) has said that leave for medical treatment is a type of reasonable accommodation and that an employer may need to extend the leave until it becomes an undue hardship on the employer’s operations. However, not all courts agree with the EEOC’s analysis. In an opinion authored by Judge (now Justice) Neil Gorsuch, the Tenth Circuit Court of Appeals in its 2014 decision in Hwang v. Kansas State University said that an employer was not required to provide an employee suffering from cancer additional time off after the employer had already granted six months of paid leave. Recently, in Severson v. Heartland Woodcraft, Inc., the Seventh Circuit said that a request for leave of several months over and above the twelve weeks of FMLA leave was not required as an ADA accommodation.
If additional leave is not granted, must the employer consider alternative accommodations?
Importantly, even if the accommodation of a multi-month leave of absence is not required under the ADA, you still need to explore other accommodations to allow a disabled employee to return to work following the expiration of that employee’s FMLA leave. Such accommodations could be the elimination of those marginal job functions that the employee cannot perform or transferring the employee to a vacant position that the employee can perform notwithstanding the employee’s limitations caused by the disability. You need to think ahead to take into account these possibilities. Unfortunately, there is not one easy answer. To make sure you have checked all the boxes, it always is advisable to consult with experienced employment counsel.
Jonathan R. Mook is a nationally recognized authority on the Americans with Disabilities Act and is a co-editor of the Virginia Employment Law Letter. For questions regarding this article or other employment law issues, you may contact Jonathan at firstname.lastname@example.org.