Theprovides a base benefit of up to 12 weeks of unpaid medical leave for eligible employees. It also outlaws retaliation for taking and guarantees that the employee can return to the same or a substantially similar job under most circumstances.
Many employers wrongly assume that they can automatically terminate the employee once she used up her 12-week entitlement. Such a policy could spell trouble.
Recent case: Jocelyn Hemphill was employed by the Philadelphia school system when she hurt herself at work. She took 12 weeks of FMLA leave, along with workers’ compensation leave. After using up her FMLA leave, she remained off work for about a year, collecting payments under her workers’ compensation plan.
Several times, Hemphill asked the school district for permission to return to work, arguing that although she wasn’t completely well, she could do her job with accommodations. The school district refused to consider her return and instead terminated her when a full year had passed since her injury.
She sued, alleging both retaliation for taking FMLA leave and disability discrimination under the ADA.
The school district argued that Hemphill was pursuing her workers’ compensation claim and couldn’t both claim she was disabled and still able to work.
The court disagreed. It said it is possible for someone to have residual problems from an injury, but still work with reasonable accommodations. A jury will decide the case. (Hemphill v. The School District of Philadelphia, No. 11-0570, ED PA, 2011)
Final note: Always analyze whether an employee who has used up available leave is disabled and could return with reasonable accommodations. In addition, consider whether allowing a little more time off would be a reasonable accommodation. Never automatically fire an employee without considering those options.
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