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The Interplay Between ADA and FMLA and Employer Obligations with Respect to Leaves of Absence

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July 2013 Nevada Lawyer 21
continued on page 22
it happens almost weekly: the call from a
client telling me that their employee is out on
leave due to a serious health condition; the
12-week leave is over on Friday, but the client
knows that the employee cannot return to
work as expected. the client then asks, “We
can terminate him and get someone in here in
their place to do the work, right?”
Well, not so fast. When employees seek time off
work for their own medical or serious health conditions,
employers must consider their obligations under both the
Family Medical Leave Act (FMLA) and the Americans with
Disabilities Act (ADA) before making any decisions related
to the employee’s employment.
Under the FMLA, employees must have worked for the
covered employer for at least 12 months and have worked
at least 1,250 hours to be eligible. The ADA, however, does
not have those requirements. Therefore, even if an employee
is not eligible for leave under the FMLA, or when the 12
weeks has been exhausted but the employee still cannot
return to work, he may still be covered under the ADA, and
additional leave is a reasonable accommodation unless it
causes the employer an undue hardship.
Therefore, analysis under both statutes should be done
whenever an employee seeks leave for his own medical
Here are some tips for coordinating leave under the
FMLA and the ADA:
Review policies. The EEOC has been actively targeting
employers with so-called “no-fault” policies. No-fault, or
automatic termination policies, are policies that provide for
termination upon the passing of a certain amount of time of
leave, regardless of the circumstances. These policies fail to
recognize the differences in each employee’s circumstances
and thus fail to recognize the obligations under the ADA to
engage in communication (called the “Interactive Process”)
with the employee about the accommodation. Instead of
policies with fxed-leave periods, policies should be amended
to indicate that the amount of leave will be determined on a
case-by-case basis.
Keep job descriptions accurate and up-to-date.
This will allow you to determine whether, upon return
from leave and with or without any other reasonable
accommodation, the employee is able to perform the essential
functions of the position.
22 Nevada Lawyer July 2013
continued from page 21
Immediately assess and think about both the
FMLA and ADA when leave is requested.
If the employee qualifes for leave under both the FMLA
and the ADA, we know that they are entitled to 12 weeks
of unpaid leave. However, if they cannot return once the 12
weeks have been taken, additional leave has been found to
be a reasonable accommodation. Therefore, the employer has
to determine whether or not additional leave would cause the
employer an undue hardship. Making these assessments early
in the process will allow you to plan for long-term absences,
and will allow you to appropriately document any undue
hardship during the entire leave.
Communicate with the employee often and
document every communication. Under the
ADA, an employer must engage in the interactive process
with the employee who has an ADA-protected disability
and may require further accommodation. Employers should
document each telephone conversation, e-mail or letter with
the employee, to show that they tried to maintain contact
during the leave. It is also important to document every
attempt to communicate with the employee, even when the
employee fails to respond. If an employee is out of FMLA
leave, towards the end of the covered 12-week leave period,
seek information from the employee about their expected
return date. Having documented communications will be
especially important if the employee fails to communicate
with the employer. Showing, through this documentation, the
employee’s failure to engage in the interactive process means
that the EEOC will be more likely to dismiss a disability
discrimination claim; however, failure by the employer to
engage in the interactive process has led the EEOC to initiate
litigation against an employer.
Document how the leave of absence affects
the employer’s business to see if the leave
creates an undue hardship. There are many factors
to look at including:
1. If the leave of absence poses a signifcant loss in
productivity because the work is being done by less-
effective, temporary workers or because the workers who
have had to take over the work are overburdened and tired
from working overtime;
2. Lower quality of work;
3. Lost sales;
4. Customer service issues, including slower customer
service, or customer complaints;
5. Deferred projects;
6. Increased burden on management to reassign projects;
7. Increased stress on co-workers; and
8. Morale issues.
If an employer can establish undue hardship, the
employer can deny the leave request and still avoid liability
from a discrimination charge.
If different people are administering the FMLA and
ADA leave, besuretocommunicateinternally so that both
departments are informed of the situation.
Evaluate each request for leave on a case-by-
case basis. Even if another employee is having the exact
same surgery, each employee may recover differently and
have different needs. Treat them individually, and document
each interaction.
Inquire about an employee’s return to work
and document responses. Employers are not
required to honor employee requests for “indefnite leave” or
endless requests for extensions of leave with no intended date
of return.
By updating policies, consistently communicating with
employees on leave, and analyzing each case individually,
employers can maintain compliance under the FMLA and
ADA and avoid liability.
mOlly rezaC is a shareholder in Gordon
Silver’s Employment Law Department.
She focuses her efforts on all types of
employment litigation matters, including
discrimination claims, retaliation claims,
wrongful discharge claims, FMLA claims,
breach of contract claims and claims
involving workplace torts. Rezac also advises companies
on various employment matters, including formulating
employment policies and drafting employee handbooks,
and regularly presents workplace seminars regarding
federal and state employment law.
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