YOU DECIDED NOT TO FIRE THAT EMPLOYEE WHO WAS OFF ON FMLA LEAVE. NOW THEY WANT MORE TIME OFF……?????

The other week I discussed a case in which an employee who was certified for FMLA leave by their physician was terminated for not properly notifying their employer of their leave status. The employee brought an action against their employer for FMLA interference and ERISA violations.  The Court granted summary judgment for the employer on the FMLA claim, but allowed the ERISA action to proceed to trial.

Let’s presume that either you or your client found yourselves in a similar situation, and decided not to terminate the employee in question. Instead, you allowed them their full 12 weeks of leave under the FMLA.  Now that the employee’s FMLA leave has expired, they present their employer with a request for an additional 30 days of leave.

A recent case from the U.S. District Court for North Carolina see link here demonstrates why you now have to begin your analysis under the Americans with Disabilities Act (“ADA”). Thank you to Eric B. Meyer’s Employer Handbook Employer Handbook for bringing this case to my attention.

The employee in this case was diagnosed with chronic autoimmune problems which required intermittent FMLA leave. Her FMLA leave expired and she requested an additional 30 days off. Her employer denied her request, and the employee was eventually terminated for failure to return to work.  The employee filed suit, alleging that the employer violated the ADA by not granting her request for a reasonable accommodation in the form of additional leave.

The employer argued that they were not able to make a reasonable accommodation without an undue hardship. According to the employer, the employee’s absence would have caused the employer to take on additional staff and resulted in increased project delivery time.  Although both financial hardship and productivity concerns can support an undue hardship analysis, the court in this case did not accept the employer’s alleged hardship.  As the court put it:

Here, the [defendant] contends that granting [plaintiff]’s claim would have imposed an undue hardship on the Engineering Department because the loss of a single engineer—in a department with only 3.5 full time engineers—would have caused other staff to take on more work and resulted in slower project delivery time.

Certainly the [defendant] has put forth evidence to show undue hardship. However, [plaintiff] has put forward evidence from which a reasonable jury could conclude the [defendant]’s explanation was pretextual. The [defendant] did not post a job advertisement for her position until August 2015—past the time [plaintiff] would have returned to work with her requested accommodation—and her replacement did not begin work until early 2017. This left the [defendant] with only 2.5 full time engineers—the precise number of staff that [defendant’s witness] testified “would not have been able to meet the mission and objective of the Department”—for nearly 1.5 years. The Court will deny the [defendant]’s summary judgment motion as to this claim.

First off, remember that these ADA and FMLA considerations are part of your workers’ compensation claims as well. Although in this case, the employee did not require time off due to a work related injury, the same ADA rights apply to injured workers.  In fact, courts may hold employers to an even higher standard when dealing with an employee who was injured on the job.  Secondly, remember that employers do not have to make accomodations if doing so would result in an undue hardship to the employer.  However, courts scrutinize what truly constitutes an undue hardship very closely.

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