Employee leave: When does the FMLA stop, and ADA begin?

FMLADA! Sometimes employment laws just look all blurry. Like when you’re required to grant leave to employees under the FMLA … and then grant additional time off as a “reasonable accommodation” under the ADA.

Where does one law stop and the other law start? One court last month answered this question with a bright-line finding. The ADA doesn’t always have to kick in after FMLA leave ...

Case in Point: “Rocky” Brown, a supervisor at a New Mexico warehouse, was granted intermittent FMLA leave to deal with absences after colon cancer surgery. Eventually, Brown exhausted all 12 weeks of FMLA leave within a 12-month period. He asked for more leave, but the company terminated him.

Brown sued, arguing that a “reasonable accommodation” under the ADA would require the company to grant him either:

1. More unpaid leave
2. The option to be able to work from home
3. Have his duties be assigned to another worker, or
4. Be assigned to another temporary position.

The employer argued that he wasn’t a “qualified individual” under the ADA because he couldn’t perform the essential functions of his job—including the need to physically be in the warehouse—even with an accommodation.

Ruling: The court sided with the company, agreeing that attendance at the warehouse was essential to perform his supervisor job. Plus, the doctor’s notes failed to indicate if and when Brown would ever sufficiently recover to return to work. The court said Brown wasn’t covered under the ADA because he “did not show a reasonable accommodation would allow him to perform the essential functions of his job.” (Valdez v. McGill, 10th Cir.)

3 lessons learned … without going to court

1. Be descriptive. Make sure you describe the essential functions of every job in all job descriptions, including the need for physical attendance at work. Pilots and bank tellers are not the only people who cannot work from home.

2. Count accurately. Brown claimed his employer interfered with his FMLA leave. But when the court added up the weeks (to the day), they were all used up. This left Brown no longer protected by the FMLA.

3. Huddle closely. When it comes to untangling FMLA rights from ADA rights, it’s best for HR and legal counsel to keep in contact. A huddle before employment actions are taken will prove to be a great return on your time.

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Author: Mindy Chapman is an attorney and presi­dent of Mindy Chapman & Associates LLC. She is a master trainer and co-author of the book, Case Dismissed! Taking Your ­Har­assment Prevention Train­ing to Trial. Sign up to receive her blog postings at www.BusinessManagementDaily.com.

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