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Consider ADA needs, FMLA requests separately

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,Human Resources

Employees who aren’t disabled under the ADA can still be eligible for FMLA leave because a health condition can be serious (the FMLA criteria) without being a disability.

That means you really need to consider requests for ADA accommodations separately from any requests for FMLA time off. Don’t make the mistake of assuming that denying an ADA accommodation means you can deny FMLA leave, too.

Recent case: IRS employee Patricia Boker has asthma, a condition she claimed was exacerbated by chemicals in the office. She said the problem was especially serious when the facility was cleaned and when co-workers wore strong scents.

For a while, the IRS granted Boker’s requests to work from home or switch cubicles. But then the IRS said it would no longer offer those accommodations. Shortly after, the IRS also denied FMLA leave to Boker and marked her as absent without leave when she took off anyway.

She sued, charging failure to accommodate under the ADA. She added a retaliation charge for denying her request for FMLA leave.

The court first concluded that Boker’s asthma wasn’t a disability. She could work, take care of herself and engage in other activities without substantial problems. But it viewed the sudden denial of FMLA leave (which the IRS later reversed) as possible retaliation and ordered a jury trial. (Boker v. Secretary, Department of Treasury, No. 1:07-CV-446, SD OH, 2009)

Final note: Remember, retaliation is anything that would dissuade a reasonable person from asking for an accommodation in the first place. Retaliation claims can live on even if the underlying charge lacks merit.

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