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FMLA: Not a Radio Station


Lowe’s recently agreed to pay $8.6 million to settle an Equal Employment Opportunity Commission lawsuit that alleged the home improvement company fired a class of workers because their disability-related medical leave surpassed the company’s 180- or 240-day maximum leave policy. If that settlement strikes fear into your heart, read on.


Generally speaking, two statutes are implicated when an employee needs time away from work due to a medical condition: the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA).


ADA prohibits discrimination on the basis of disability and requires that employers with 15 or more employees provide reasonable accommodations to applicants and employees who require them due to a disability. Generally speaking, a reasonable accommodation is a change in the way things are done or the work environment that enables a person with a disability to enjoy equal employment opportunities, unless that is an undue hardship on the employer. Reasonable accommodations can include everything from modifying a work schedule to moving a desk, and from providing job-related equipment to providing leave.


But wait, you say, all of that stuff costs me money – surely that’s an undue hardship! Not so fast, my friend. The undue hardship clause requires that you take into account a number of factors, including the size, resources, nature and structure of the company, and then determine whether providing an accommodation constitutes a significant difficulty or expense. A larger organization generally will be required to make accommodations that cost more, but even small employers will have a hard time arguing a relatively inexpensive fix is an undue hardship.

A critical aspect of compliance with ADA is engaging in the interactive process, which basically means companies and their employees need to talk about the disability and how they should be handled in the workplace. It sounds simple, right? It can be. If the employee requests a desk lamp, chances are you can give her a desk lamp and then everyone is happy. However, if the employee firmly believes the only possible accommodation is for him to work from home and the job requires in-person actions, it’s more challenging.


The ADA does not require an employer to create a job, to displace another employee, or to give the employee the exact accommodation requested as long as the accommodation granted is effective (allows the employee to perform the essential functions of the job). If an employee cannot perform his or her regular job because of a disability, then reassignment to another vacant position or even a medical leave of absence also are types of reasonable accommodation.

As always, document this process. A good practice would be to provide the employee a written summary of each conversation, and ask the employee to sign off on it.

FMLASick Leave

FMLA entitles “eligible employees” of “covered employers” to take unpaid leave for specific family and medical reasons, and then return to the same or “substantially equivalent” (virtually identical) position.

A “covered employer” is a company with 50 or more employees. An “eligible employee” has worked for a covered employer for at least 12 months; has worked 1,250 hours in the preceding 12 months; and works at a location where the employer has at least 50 employees in a 75-mile radius.


If all the qualifications are met, then the employee is entitled to 12 weeks of leave in a 12-month period for things like the birth or adoption of a child, a serious health condition, or to care for a relative with a serious health condition. FMLA leave also may be taken intermittently; i.e., in small chunks. Additionally, an eligible employee may take up to 26 weeks of leave in a 12-month period to care for a covered service member. Leave also is available for military reasons that are not medical in nature, but that part of FMLA is beyond the scope of this article.


Employers typically can require employees to use any accrued paid leave to cover some or all of the FMLA leave period. Further, an employee requesting leave needs to provide enough information that the employer can figure out whether FMLA is applicable, and should also give 30 days advance notice when the need for leave is foreseeable. There also are a lot of technical hoops you need to jump through – using the approved forms, properly designating the leave as FMLA leave, etc. – in order to properly administer FMLA leave.

When Both Acts Apply

What happens when you have an employee who qualifies for protections under both ADA and FMLA? They both apply. For example, in the context of providing leave, an employer must provide leave under whichever law provides the greater rights to employees. And if an employer violates both ADA and FMLA, an employee may be able to recover damages under both laws.


Understanding Through Examples

To see how this works in the workplace, let’s walk through some examples, courtesy of a recent post from my colleague Robin Shea’s award-winning blog, Employment and Labor Insider.

EXAMPLE 1: Elbert has been out on FMLA leave for 12 weeks after having a heart attack. During that 12 weeks, he used up his accrued paid time off, and you don’t offer disability benefits. At the end of the 12 weeks, he brings you a doctor’s note saying that he will be able to return to work without restrictions after two more weeks (14 weeks total). Since Elbert has no more FMLA leave and no more paid leave, and since you don’t offer other types of leave, you administratively terminate him (no-fault termination) after 12 weeks. Is this lawful or unlawful?


Unlawful. Assuming the ADA applies to you, giving Elbert an additional two weeks of unpaid leave is almost always going to be a reasonable accommodation. If the employee’s doctor says she doesn’t know when or whether Elbert can return, that’s one thing. But if the employee needs a few more weeks, it’s hard to believe that will be an undue hardship for most companies.

EXAMPLE 2: Viktor has taken a ridiculous (but legitimate) amount of intermittent, non-FMLA leave for his disability, which has caused his co-workers to suffer from overwork – which in turn has caused your business to miss deadlines and lose customers. You administratively terminate Viktor’s employment because his intermittent absences are causing an “undue hardship.” Is this lawful or unlawful?


It depends. These situations are extremely fact specific, so I recommend running it by your favorite employment counsel before taking action. Here, you’re missing deadlines and losing customers. That may be a legitimate undue hardship. But it might also pay to explore whether you can hire a part-time employee or temporarily move someone else into the department to help on a short-term basis.

EXAMPLE 3: Mary is on an approved leave of absence, recuperating from a hysterectomy that she had to get because she had ovarian cancer. She is due to return to work on June 15. You call her at home on May 25 and ask her how she’s doing. Is this lawful or unlawful?


Lawful. It’s OK to be a humane employer. However, if you already know that she’s due to return to work on June 15, you can’t also require updates about when she plans to be back.

EXAMPLE 4: Lolita has degenerative disc disease, and both she and her doctor agree that she can no longer perform her job as an order picker in your distribution center. Since everyone agrees that Lolita can’t do her job any more, you administratively terminate her employment. Is this lawful or unlawful?

Probably unlawful. Under ADA, employers are supposed to at least explore the possibility of reassignment to a position that Lolita can perform, with or without a reasonable accommodation.


Consider State Laws, Too

As if the federal laws weren’t enough, keep in mind that there also are state laws that might provide additional protections or impose additional requirements for employees. However, by keeping the basics of FMLA and ADA in mind, you will be well on your way to avoiding a legal mishap.


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