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Partners in time: Balance FMLA and ADA when employee’s serious illness is a disability

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in FMLA Guidelines,Human Resources

Survey after survey reveals that the FMLA and the ADA create more HR headaches than any other federal laws. Both protect sick or disabled em­­ployees, and both typically work together in organizations with more than 50 employees (the threshold for FMLA coverage).

Intermittent FMLA leave is a particularly sticky problem. Employees with a serious health condition are entitled to take intermittent leave when their conditions flare up. And disabled employees are entitled to reasonable accommodations for their disabilities. That can include time off.

Employers must therefore consider granting intermittent FMLA leave among the possible ADA reasonable accommodations when an employee has a serious health condition that is also a disability.

Recent case: Carla Myles was a customer service representative for the University of Pennsylvania Health Systems until she was terminated for poor performance. She was fired when she failed to meet a quota for being available to take phone calls.

Myles had irritable bowel syndrome (IBS), which was diagnosed shortly after she began working for the university. Her doctors recommended intermittent FMLA leave for times when IBS left her unable to work because of diarrhea and stomach pains. Over the several years she worked for the university, she took intermittent leave whenever the condition got worse.

Meanwhile, Myles’ call availability continued to slide. Myles said she ex­­plained to supervisors that she had to be away from her desk when her IBS flared up, even if she was not affected enough to miss an entire day. Myles’ bosses refused to accept her claim and finally recommended termination.

Myles sued, alleging both interference with her right to intermittent FMLA leave and disability discrimination based on refusal to accommodate her disability.

The university argued that it wasn’t required to let Myles take extended bathroom breaks as intermittent leave or as an accommodation.

The court said the case should go to trial. It reasoned that Myles had a serious health condition under the FMLA as well as a disability under the ADA. (Myles v. University of Pennsylvania Health Systems, No. 10-4118, ED PA, 2011)

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