I have previously written about eligibility for time off under the Family Medical Leave Act (FMLA). I have also talked about the Americans with Disabilities Act (too many times to mention here). Many of you may have dealt with each law separately. A number of you may, to your surprise, have found yourselves dealing with both at the same time. FMLA is an employee leave law. ADA is an anti-discrimination law. Can both laws really impact the same set of facts? If so, how? Now for the truly burning questions: Does it matter that both may apply? If so, when and how? That seems like enough questions to get us started this week–and get started we will, after the jump, of course!
(image from hospitalityriskupdate.com)
Suppose your employee has migraines and asks for time off on an intermittent basis. The FMLA regulations specifically provide for this type of leave. What happens if your company is too small to be subject to the FMLA though? Alternatively, what happens if you are subject to FMLA, but the employee already took all twelve weeks of FMLA leave time s/he was entitled to within the last year? Many employers assume that the employee is not entitled to time off and deny the request–and find themselves in a lot of hot water. Why? Even if your company is not subject to the FMLA, or even if the employee is no longer eligible for FMLA leave, your company may be subject to the ADA. So what? The ADA is not an employee leave law is it? Well, theoretically, no, but practically speaking, yes, sometimes. Huh?
Title I of the ADA prohibits discrimination based on disability, record of disability or perception of disability. It also requires employers to provide reasonable accommodations to qualified individuals with disabilities. How would that apply to our example? The ADA/ADAAA defines disability very broadly. Migraines will likely qualify as a “disability”. Now here’s the kicker: Unpaid leave, including intermittent unpaid leave may be a reasonable accommodation under the ADA. So, while your employee may not be eligible to take time off under the FMLA, s/he may be entitled to the very same intermittent leave as a reasonable accommodation under the ADA.
Can a request for FMLA leave also qualify as a reasonable accommodation request? Practically speaking does that matter? Initially it may not. If an employee has a “serious health condition” under the FMLA that is also a “disability” under the ADA and if s/he is otherwise eligible for FMLA leave, then you will most likely need to follow FMLA requirements initially. Why? The FMLA generally provides greater leave protection to employees, and you will want to follow the more restrictive law to protect against consequences of violating both laws. But that may not be the end of the matter. What if your employee exhausts his/her FMLA leave but says s/he still cannot return to work? You may be able to terminate that employee, but maybe, just maybe extended leave will be a reasonable accommodation under the ADA. Whether or not it is, and if so, how much leave you then have to allow depends on the specific circumstances.
Now, let’s add another layer just for fun. Suppose that your employee with migraines has been taking intermittent FMLA leave. You find out that on one of those intermittent leave days, s/he was arrested for DWI, the next day s/he was in jail, and on subsequent “leave days” s/he was attending court appearances. You fire your employee and s/he sues, alleging, in addition to FMLA-related claims, violation of the ADA. S/he argues that you should have simultaneously considered the FMLA request a request for reasonable accommodation under the ADA. Does a FMLA request double as an ADA request for a reasonable accommodation?
While they may fit the criteria for both, in the situation of potential leave abuse, maybe it does not matter. Why not? If an employer can prove that an employee is abusing his/her leave, then s/he wasn’t entitled to leave — or job protection–under either law. This is essentially what happened in a Second Circuit Court of Appeals case under similar facts in Capps v Mondelez Global No. 15-3839, 2017 U.S. App. LEXIS 1593 (Jan. 30, 2017). The Court did confirm that under certain circumstances a request for leave under the FMLA can double as a reasonable accommodation request under the ADA. It also, however, found that: a) the facts did not support a reasonable accommodation case; and b) the employer’s honest belief, even if that belief was incorrect, that the employee had violated its Dishonest Acts Policy was a valid reason for terminating him and a valid defense under the FMLA. This is known as the “honest belief” rule. “Honest belief” is a defense to FMLA claims. What about ADA claims? Theoretically no, but there is another, equally valid defense here: If the employee claims a need for intermittent leave to take care of migraines, and on one of those days off is arrested for drunk driving, and then uses subsequent leave time for court appearances, the intermittent leave is likely not a reasonable accommodation for the purported disability.
What can you do to avoid such a situation? You might start with the following:
- Evaluate all leave requests, allowing for the possibility of either or both the FMLA and the ADA applying;
- Review and update your leave policies;
- If you determine that your employee is not eligible for FMLA leave, engage in the interactive process. Learn how your employee’s medical condition affects his/her ability to perform his/her essential job functions and discuss possible temporary adjustments to the job.
- If at all possible and reasonable, provide temporary adjustments that keep the employee on the job. Remember that under the ADA you need only provide reasonable accommodations –not necessarily the specific accommodation the employee requests. You can provide an alternative that is equally effective in addressing the issue at hand.
- Consult with competent employment counsel. (Did you really expect me not to include this one?)
Let’s end here for now. See you next week!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
Are you a N.J. employer/business owner? Join the new LinkedIn group, New Jersey Business Litigation Forum, run by my friend and colleague, Gene Killian. Click here for more info.
Want to learn more about the overlap between FMLA, ADA and other employee leave laws? Click here to register for my upcoming live webinar on Tuesday March 21. To learn more about dealing with Leave Abuse, click here for my webinar on March 1.
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