ADA May Require Additional Leave Following FMLA Exhaustion, EEOC Reminds Employers

The Americans with Disabilities Act may require additional leave for workers who exhaust their Family and Medical Leave Act entitlements, the U.S. Equal Employment Opportunity Commission warned in a recent press release. The agency said a trucking and property management company will pay $65,000 to settle a lawsuit alleging the employer violated the ADA by terminating employees unable to return to work after 12 weeks of medical leave. The agency announced the settlement Feb. 15.

EEOC charged that the company failed to comply with the ADA when it fired two employees because of their disabilities, rather than providing a reasonable accommodation. The agency claimed that it was the employer’s policy to terminate employees who could not return to work after using the 12 weeks of medical leave allotted to them by the FMLA.

The company dismissed one employee of 30 years who asked to extend his FMLA leave by three weeks, EEOC alleged. The agency claims the employer terminated another worker with 20 years’ tenure who needed one additional week of leave after his FMLA leave expired.

As this settlement exemplifies, policies that fail to make room for accommodations can land employers in hot water.

“Policies that lead to the automatic termination of employees immediately upon the expiration of FMLA leave conflict with the ADA — specifically, its requirement that an employer engage in an interactive process with an employee to determine whether an accommodation that does not create an undue hardship is possible,” EEOC regional attorney Marsha Rucker said of the settlement. “Additional leave can be a reasonable accommodation.”

The FMLA requires employers to provide workers with 12 weeks of job-protected leave for medical or family reasons. But under the ADA, employers may be obligated to provide additional leave as a reasonable accommodation. Neither law makes clear, however, exactly how much leave is reasonable, creating a gray area that courts have tried to address in recent years.

In late 2017, the 7th U.S. Circuit Court of Appeals handed down one of the more significant rulings to grapple with this question. In Severson v. Heartland Woodcraft, Inc., an employee charged that his employer violated the ADA when it fired him instead of granting his request to extend his exhausted FMLA leave by two to three months. The 7th Circuit took the employer’s side, reasoning that “a multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.”

More recently, the 5th Circuit found that no extra leave was due for a worker who used up her FMLA leave and asked for extra time off without specifying a return-to-work date, as the ADA does not require indefinite leave as an accommodation.

Even as decisions like these attempt to clear up the muddled waters surrounding the intersection of the ADA and FMLA, employers lack an exact amount of time that remains reasonable. Still, they can be sure of one thing: Policies that erase the possibility of accommodative leave can lead to trouble with both EEOC and the courts.

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