A recent case out the Northern District of Florida presents a cautionary tale for employers who believe their obligation to provide employees with job-protected leave from work due to a medical condition is governed solely by the FMLA. The case is Walker v. NF Chipola, LLC (N.D. Fla. March. 28, 2016).
The plaintiff was a certified nursing assistant (CNA) for a nursing home. Supported by documentation from her physician, she requested six months leave time for a surgery and recovery. The nursing home approved 12 weeks of leave under the FMLA, but refused to approve the additional three months of leave. Because the employee was unable to fully return to her duties at the end of her FMLA leave, she was forced to resign and be eligible for rehire, or be terminated. She resigned and later applied for rehire, but the employer refused to give her a position. She then sued – and won – on the basis of disability discrimination under the Americans with Disabilities Act (ADA).
Lesson #1 of this case comes from the nursing home’s refusal to rehire this CNA. If it had done so, there likely would never have been a lawsuit filed. It is a good practice to allow employees who are unable to return to work at the end of an approved leave with the opportunity to apply for rehire. But when an employee does reapply, it is prudent to find a position for him or her, unless there is a legitimate business reason against the rehire. It is axiomatic that the absolute best way to win a lawsuit is to never let it be filed in the first place.
Other lessons can be drawn from the failed defenses in this case. For example, the employer argued it was not sufficiently clear that the CNA had requested the additional three months leave as an ADA accommodation. The Court was not impressed by this assertion, since the CNA’s original FMLA certification indicated she would need six months before she would be able to return to her duties. The Judge’s Order states: “[the nursing home] would have had to be exceedingly dense not to understand precisely what Mrs. Walker was asking for.” Talk about adding insult to injury.
The court was also unconvinced that a six month leave would present an undue hardship to the employer, because nursing homes employ a lot of CNAs and there is always high turnover in that position. Finding a spot for this individual when she was ready to return to work should not have been any great difficulty, and there was no hardship to the nursing home during her leave because she was not receiving any pay or any benefits while out of work.
With other facts, this case may have turned out differently. If the plaintiff had been receiving benefits during her leave, or if she had been employed in a position with low turnover, the employer would have had a stronger argument that her request for an extended leave was an undue hardship in terms of costs or interference with operations. But varying outcomes is inevitable when you start with rules – like reasonable accommodation and undue hardship – that have few clear lines and generally must be decided on a case-by-case basis.
To avoid suffering the same fate as the nursing home in this case, employers must appreciate that the FMLA and the ADA impose similar but distinct obligations. Remember these rules of thumb:
- Approving employee requests for leave time from work can be a reasonable accommodation under the ADA.
- Exhaustion of leave rights under the FMLA does not determine whether the employee might also have the right to additional leave under the ADA.
- The ADA might apply and require approval of a leave of absence even if the FMLA does not apply, either because the employer is too small or because the employee is not FMLA-eligible due to being newly hired or a part-time worker.
- The duty to reasonably accommodate under the ADA may require an employer to make a departure from or exception to written attendance or leave policies in order to reasonably accommodate an employee with a disability.
- Any employee request for leave due to a medical condition should be considered a request for an ADA accommodation, due to the broad interpretation of the term disability for purposes of the law.
- Once leave is allowed, the time period of the leave should not be considered set in stone. Sometimes recoveries take longer than originally estimated.
- Employee requests for leaves of absence of indefinite duration are generally not considered reasonable.
- Employers should not require employees who are on a leave with a fixed return date to check in or report off on a regular basis.
- Blanket policies that require employees to be 100% healed before returning to work violate the ADA. Employers should engage in the interactive process with all individuals nearing the end of an approved leave to determine whether any reasonable accommodation –such as extending the leave, adjusting non-essential job functions, or reassignment to a different position – is possible to enable the employee to return to work.
Because this has become such a common problem, the EEOC recently published Guidance entitled Employer-Provided Leave and the Americans with Disabilities Act.
For more information, contact our employment law attorneys, Steve Senn or Amanda Walls.