Employers must be careful when considering whether to terminate an employee who is unable to return to work after exhausting his/her Family Medical Leave Act (“FMLA”) leave, without first considering another law – the Americans with Disabilities Act (“ADA”).
The FMLA covers private employers with 50 or more employees. The ADA covers private employers with 15 or more employees. The FMLA and the ADA both require a covered employer to grant medical leave to an employee in certain circumstances. If you are a private employer with 50 or more employees, you need to keep both the FMLA and ADA in mind when an employee takes leave for a health condition.
Under the FMLA, an eligible employee may take up to 12 workweeks of leave during any 12-month period because a “serious health condition” makes the employee unable to perform one or more of the essential functions of his or her job.
The ADA requires employers to provide reasonable accommodations—changes to the workplace or job—to allow employees with disabilities to do their jobs. Employers are required to provide such accommodations unless doing so would pose an undue hardship on the operation of the employer’s business.
Although a “serious health condition” under the FMLA is not necessarily an ADA “disability”, there are instances where a FMLA “serious health condition” also qualifies as an ADA “disability.” Under the latter scenario, if the employee takes FMLA for his/her serious health condition but is not quite medically ready to return after his/her 12-week allotment is up, the employer must consider whether it must provide the employee with additional leave. This is because a qualified employee with a disability may be entitled to more than 12 weeks of unpaid leave as a reasonable accommodation.
To avoid possible exposure to ADA claims in this context, employers should have a clear procedure for handling requests for additional leave once an employee exhausts his/her FMLA leave. Additionally, employers should not have an inflexible leave policy that results in the automatic termination of an employee if the employee does not return to work by a specific date.
Violation of the FMLA and ADA can result in steep penalties for an employer, including payment of the employee’s attorneys’ fees. The attorneys in Critchfield, Critchfield & Johnston, Ltd.’s employment law group are available to help you navigate any type of employee leave issue so you can best protect your business.