There are several laws out there that intersect with the Americans with Disabilities Act. One of them is the Family and Medical Leave Act (FMLA). That law intersects with the Americans with Disabilities Act in a variety of ways. I am not going to explore all of those ways in this entry. What I do want to focus on is that the law allows an employee whom has worked the requisite number of hours in the prior calendar year for an eligible employer (50 or more) to take up to 12 weeks of leave (paid or unpaid or some combination of that), to deal with his own or a family member’s serious health condition. Once that leave is up, the employer can require certification from the employee in order to return to work. That certification process must be done in a way that takes into account the Americans with Disabilities Act as well because that certification process is set up in such a way that an employer could easily comply with the FMLA and yet violate the ADA at the same time. The question for this entry is what happens when the employee cannot return to work to do their essential functions of the job (as the certification link above makes clear, the family medical leave act regulations do not take into account reasonable accommodations), at the end of their FMLA leave? Is it a reasonable accommodation to grant more leave under the Americans with Disabilities Act, assuming the person has a disability under the ADA? The cases over the years have said that it can be. The question for the employer is how do they know when such a situation occurs? The cases have not always been clear on that point. A recent case from the 10th circuit answers that question. Of course, you always have to check your own jurisdiction, but nevertheless this case may be helpful, particularly as a preventive law matter, in dealing with this issue.

In Robert v. Board of County Commissioners of Brown County, Kansas, _F.3d_, 2021 WL 3715311 (10th Cir. August 29, 2012), plaintiff worked as a supervisor of released adult offenders for 10 years when she developed sacroiliac joint dysfunction. Id. at *1. An essential function of her job included considerable fieldwork throughout her district. Id. Prior to her surgery to fix the problem and during her recovery from the surgery, she worked from home by auditing case files for closed cases. Id. During that time, she could not visit offenders at their homes or in jail, and she was also unable to provide drug and alcohol screening, all of which were essential functions of her job. Id. She eventually returned to work and was able to resume all of her work activities, but she fell down some stairs thereby causing the process to repeat itself all over again. Id. After the second surgery, it simply became unclear as to when the plaintiff could return to work. Id. at *2. What was undisputed was that she could not return to work to do the essential functions of her job at the expiration of her FMLA leave. Id. Also, while in a follow-up appointment, the surgeon for the plaintiff predicted that she might be able to walk in two or three weeks and unassisted two weeks after that, no such documentation was given to her supervisor or to her employer to that effect. Id. Accordingly, since the plaintiff’s leave had been exhausted and because her absence was very much affecting the workplace in terms of productivity, she was terminated. Id.

In affirming the lower court’s award of summary judgment for the employer, the 10th circuit found that the plaintiff was not otherwise qualified. Id. That is, she was not protected under the ADA because she could not do the essential functions of her job with or without reasonable accommodations. For our purposes, what is very useful to know is the court’s discussion of when a medical leave upon the expiration of FMLA leave might be appropriate as a reasonable accommodation under the ADA. The court noted that prior decisions of the 10th circuit (for that matter, other circuits do hold the same as well), allow for a brief leave of absence for medical treatment or recovery as a reasonable accommodation. Id. However, in order for that to occur, the court noted that the employee must provide the employer an estimated date as to when he or she can resume her essential duties of the position. *4. Second, that leave request must ensure an employer that an employee can perform the essential functions of her position in the near future. Id. Since neither was the case in this situation, the plaintiff could not successfully claim that additional leave would be a reasonable accommodation. Id. at *5.

Preventive law tips: FMLA allows an employer to request certification from an employee before they can return to work. Very importantly, that certification is based upon whether the employee can perform the essential functions of the job but not upon whether they can perform the essential functions of the job with or without reasonable accommodations. Therefore, if an employer has a certification process with respect to returning from FMLA leave, it would be important for them to assess first whether the person could perform the essential functions of the job. Second, if that person arguably has a disability under the ADA (while the ADA does not protect temporary disabilities, when a disability is no longer temporary can be very hard to pinpoint), the employer would do well to assess whether that person could perform the job with or without reasonable accommodations. If the answer to that question is yes, then the employer should consider offering reasonable accommodations or initiating the reasonable accommodation interactive process. Third, if the employer finds that a person at the expiration of FMLA leave can neither: A) do the essential functions of the job; nor B) do the essential functions of the job with or without reasonable accommodations (assuming an arguable disability under the ADA as amended), then the employer needs to consider whether additional leave would be a reasonable accommodation. In that case, has the employee given the employer an estimated date when she can resume her essential duties with or without reasonable accommodations? Also, does that leave request assure the employer that the employee can perform the essential functions of his or her position with or without reasonable accommodations in the near future? If all these criteria are satisfied, then the employer should consider going ahead in granting the additional leave. Finally, the employer will also need to consider in these situations just at what point would the additional leave result is a fundamental alteration of the operation of the business, an affirmative defense that the employer has under the ADA.


3 Responses to How might you know when more leave is a reasonable accommodation once FMLA leave has been used up?

What this case doesn’t answer is whether a certain period of time after which would be automatically considered not reasonable. The recent case of Hwang v. Kansas State University, , answers that question. In this case, a non-tenured faculty person came down with cancer. The school had a policy where they allowed such individual to take six months of leave. However, if the individual is not able to come back to work after the six months, the person was for all practical purposes terminated. She brought suit alleging violations of the ADA. Some of the statements/points of the court readers here will find useful:

1. “It perhaps goes without saying that an employee who is incapable of working for so long is an employee capable of performing a job’s essential functions-and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation. After all, reasonable accommodation-typically things like adding ramps or allowing more flexible working hours-are all about enabling employees to work, not to not work.”

2. “Still, it’s difficult to conceive how an employee’s absence for six months-an absence in which she could not work from home, part-time, or in any way in any place-could be consistent with discharging the essential functions of most any job in the national economy today.”

3. “The rehabilitation act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work-not to turn employers and the safety net providers for those who cannot work.” This was a Rehabilitation Act case and not an ADA case. Hence, the reference to the Rehabilitation Act.

4. In their guidance, the EEOC says that an employer doesn’t have to go as far as to allow a six-month leave to an individual just because another job might open up by then.

5. “Inflexible leave policy can serve to protect rather than threaten the rights of the disabled-by ensuring disabled employees leave requests aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency.” Inflexible leave systems, citing to U.S. Airways v. Barnett, 535 U.S. 391, 404 (2002), can “provide important employee benefits by creating, and for billing, employee expectations of fair, uniform treatment, introduce an element of due process, and limit potential unfairness and personnel decisions.

6. A full six-month sick leave is more than sufficient to comply with the act in nearly any case barring any allegations suggesting unequal enforcement in it terms.

Takeaways: what this means is that family medical leave act leave is three months. This decision now gives employers license, or guidance depending upon which side of the aisle you are on, to grant another three months of leave as a reasonable accommodations if the situation and the circumstances suggest that it should do so, but at the end of that additional three months, if this decision holds, which I think it will, the employer is then free to terminate.

Finally, my thanks to Eric Meyer, who has a blog called the employer handbook, now in my blogroll, for pointing out this case to me.

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