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Beware ADA retaliation trap if employee asks for more time off after FMLA leave expires

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in Employment Law,FMLA Guidelines,Hiring,Human Resources

Employees who take their full 12 weeks of FMLA leave and can’t return to work lose their FMLA job protection. But that doesn’t mean they’re not still protected by the ADA.

In fact, if an employee who can’t yet return to work asks for a reasonable accommodation—such as additional time off or a reduced schedule until she is ready for full-time work—you should consider the request. That means beginning the interactive accommodations process.

Plus, if the employee does ask for an accommodation when she can’t come back full time yet, that request is a protected action. Employers can’t retaliate against employees who ask for accommodations they believe they are entitled to. That’s true even if it turns out that the employee isn’t disabled under the ADA.

Recent case: Shashi Pandey worked as a social worker for a company that runs several dialysis clinics in Minnesota.
Pandey is from India and claims to have suffered from severe depression, anxiety and difficulty sleeping for years.

When a new supervisor took over and demanded more of Pandey than others had in the past, she became overwhelmed and had her doctor certify that she suffered from a serious health condition. She then took 12 weeks of FMLA leave. A few days before she was scheduled to return, she asked for a reasonable accommodation of her alleged disabilities: Her doctor said she could work part time and then ease back into a full-time job.

The company terminated Pandey, claiming that it no longer needed as many social workers because it had fewer patients. Two months later, the company advertised for a social worker. Pandey applied, but the job was given to someone else.

She sued, alleging she had been discriminated against because of her disability and retaliated against for requesting an accommodation.

First the court analyzed Pandey’s claimed disability and concluded she hadn’t shown she was disabled under the ADA because her condition didn’t substantially impair a major life activity.

But that wasn’t the end of the case. The court said her request for an accommodation (part-time hours after her FMLA leave expired) was a protected activity. It said an employee who is not “ADA-disabled may pursue a retaliation claim as long as she has a good faith belief that the requested accommodation is appropriate.”

The court also concluded that the timing was suspect and the subsequent hiring could cast doubt on the legitimacy of the reason the company gave for terminating Pandey (Pandey v. Bio-Medical Applications, No. 07-CV-4266, DC MN, 2009)

Final note: The best approach to reasonable accommodation requests from employees returning from FMLA leave is to carefully consider the request just as you would any request from any other employee. Refusing to even entertain the idea is dangerous. If you then discharge the employee because she is out of FMLA leave, a jury may jump to the conclusion that you retaliated against her for asking for the accommodation.

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