Know the Evolving Rules Before Terminating an Employee on FMLA leave

Know the Evolving Rules Before Terminating an Employee on FMLA leave

Employees who take an unpaid leave, per the Family Medical Leave Act (FMLA) may need more than the 12-week limit. Deciding whether to promise an employee who exceeds the limit that he or she will have a job to return to takes a delicate balancing of compassion, practicality and legal risk analysis. That’s because, if the extended absence is the end result of some form of disability, the Americans with Disabilities Act (ADA) might also play a role in your decision. The enforcer of the ADA — the Equal Employment Opportunity Commission — has never offered clear guidance on the topic.

A pair of back-to-back rulings by the U.S. Court of Appeals for the 7th Circuit (which covers Wisconsin, Illinois and Indiana) has shaken things up. The first case involved an employer’s denial of an extension beyond the 12-week period. The request had been made by an employee who had been absent due to severe back problems.

Termination Following Surgery

The employee requested the extension two weeks before the end of his 12 weeks of leave and stated that he was scheduled to have back surgery on the last day of the leave period. The employer responded to his request the day prior to his surgery, by denying the extension and encouraged him to reapply for his job when he was able to work again.

Instead of reapplying for his job three months later when he was ready to return to work as suggested, however, the employee charged the company with an ADA violation. The violation, he said, was failing to provide him with a reasonable accommodation in the form of an extended leave of absence. In its ruling, the appeals court conceded that the company might reasonably have granted the request for an extension, had it only been for a “brief” period.

But, crucially, the Court pointed out that “the ADA is an anti-discrimination statute, not a medical-leave entitlement,” and that the ADA only “forbids discrimination against a ‘qualified individual on the basis of disability.'”

“Qualified Individual” Status

Who is a “qualified individual?” Not this employee, the court ruled. An employee who needs long-term medical leave cannot work, therefore cannot be granted a reasonable accommodation, and on that basis is not a qualified individual under the ADA. The Court did leave the door open, however, to “the possibility that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances.”

An example would be a person with arthritis or lupus who has occasional flair-ups that might require absences of “a couple of days or even a couple of weeks.” But citing an earlier case, this court ruled that “a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. To the contrary, the inability to work for a multi-month period removes a person from the class protected by the ADA.”

The 7th Circuit made a similar ruling in a subsequent case that was argued only three days later. In that case, the employer had granted the employee four additional weeks of unpaid FMLA leave, but terminated her when it was clear she wouldn’t be able to return to work for an indefinite period of time.

No Blank Check

Neither ruling, however, gives employers everywhere a blank check to reject FMLA leave extension requests out of hand. First of all, unless and until the U.S. Supreme Court takes the same view as the 7th Circuit, federal courts in other circuits might not deliver consistent rulings.

What is also important in dealing with such situations is to maintain communication with employees while they are on unpaid FMLA leave before the 12-month period ends. Courts in other cases have taken a more favorable view of employers’ decisions to terminate employees who exhaust their FMLA leave limit if they have maintained a dialog with those employees.

Why? Because, depending on the topics discussed, a court may see those conversations as evidence both of an employer’s concern for the employee’s well-being, and perhaps more importantly, the employer’s ability to make an informed assessment of how long it might be before the employee could return to work following the 12-week period.

Such conversations could also equip the employer to determine whether the employee could return to work if reasonable accommodations were made. If an employer is seen to be exploring that possibility, a court might fairly conclude that the employer isn’t hostile to the goals behind the ADA.

Contact CertiPay HR to to consult with an HR professional before terminating an employee when there is a chance it will trigger an ADA claim.

Posted Mar 20, 2018
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