We get questions…

An employer called with this inquiry: “one of our employees has been on leave under The Family & Medical Leave Act (FMLA) for a serious health condition and the 12 weeks have expired.  The employee has not come back to work and the most recent medical note states that the employee will not be able to return for another two months.  Can we fire this employee?”

If all we had to worry about was FMLA then the answer may be yes.  However the answer is quite likely no for one or more reasons unrelated to FMLA.  First, if the serious health condition was at all work-related or work-aggravated then a termination may constitute discrimination for having had a worker’s compensation covered injury or illness.  Generally, however, terminating the employee automatically after expiration of FMLA leave might create a violation of the Americans with Disabilities Act (ADA). 

Issues of ADA and leaves of absence as reasonable accommodation were discussed at a meeting of the U.S. Equal Employment Opportunity Commission (EEOC) this June 8 in Washington D.C.  It is well known that under ADA, as well as under state laws like California’s Fair Employment and Housing Act (FEHA), an employer must provide a reasonable accommodation to a disabled employee if the accommodation will allow the employee to perform the essential functions of the job.  As the EEOC discussed earlier this month, that accommodation may frequently be additional leave of absence.  As the Chair of the EEOC stated,

“a period of leave – whether for medical treatment, recovery, or training to use adaptive equipment – is often the reasonable accommodation that permits a person with a disability to remain gainfully employed.”

Thus, the law may require an additional leave of absence beyond the 12 weeks permitted by FMLA if the employee’s condition constitutes a disability, a term which is defined in California so broadly that it covers almost any health condition that interferes with the performance of the job.  It has also been made clear that the leave of absence need only be “reasonable,” it need not be indefinite.  However, the burden would be on the employer to establish a business necessity why it could not provide the more lengthy leave of absence.

We advise our clients that it is unwise to have an inflexible leave policy that calls for automatic termination once the maximum amount of leave expires.  Every case must be treated on an individualized basis and the “interactive dialogue process” called for in the FEHA should be utilized to involve a discussion directly with the employee about these issues.  Further, the opinion of the employee’s physician must be taken into account. Employers should never “play doctor.”  Further, when deciding whether an employee is medically able to return to work, employers should never have a requirement that the employee must be able to return to work without restriction.  Both ADA and FEHA require reasonable accommodation to an employee’s restrictions if possible, unless this creates an undue hardship for the employer. This may require job restructuring, reassignment of duties or other measures as long as the employee still can perform the essential functions of the job. Establishing undue hardship is very difficult. Cost alone does not make a hardship “undue.”

Finally, and perhaps most importantly, the individuals at your agency or company assigned to engage in this analysis and make these decisions should be adequately trained in ADA concepts and procedures.  We have encountered a number of agencies who leave these decisions to worker’s compensation administrators who, while highly trained in that field, are lacking in ADA/FEHA knowledge. 

An industry has developed of attorneys keen to file lawsuits against employers alleging violation of ADA and FEHA alleging disability discrimination.  Your job is to be proactive to prevent situations from developing which could expose your agency or company to litigation and potential liability.