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Consider more leave, different job as ADA accommodation after FMLA leave expires

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in FMLA Guidelines,Human Resources

When an employee works in a demanding position and has a medical crisis, he may not be able to return quickly to his old job. It’s en­­tirely possible he may use all available FMLA leave and other accrued leave and still receive clearance to work.

That doesn’t mean his employer isn’t obligated to try to reasonably accommodate him. If it is clear the employee can’t perform his former job, make every effort to come up with work he can safely do. If he needs more time off, grant it. Those good-faith efforts show you take your ADA responsibilities seriously.

They also minimize the chance that he will file—and win—a discrimination lawsuit against you.

Recent case: Jeremy was a locomotive engineer for the Soo Line Railroad, responsible for safely operating trains that can take up to a mile and a half to come to a stop in an emergency. It’s difficult work. Engineers are often on call 24 hours per day and may work long hours for days on end before getting a break that completely relieves them of duty.

After working a long shift, Jeremy went home to sleep. He suffered a grand mal seizure that lasted for five minutes. He was taken to the hospital and diagnosed with epilepsy, likely triggered by sleep deprivation.

Over the next few months, he went to several doctors, each time requesting clearance to return to work. No one would OK Jeremy for work as a locomotive engineer until he had been on anti-seizure medication for at least a year with no seizures. Plus, he was barred from driving until he had been completely seizure free for three months.

Doctors said he could, however, perform a desk job.

Once Jeremy’s accumulated paid leave expired, the railroad placed him on unpaid medical leave, allowing him to retain his seniority. It also helped him search for jobs within the company for which he was qualified. Despite several applications, Jeremy didn’t land another job with Soo Line because he never ranked among the best-qualified applicants. He refused to apply for other jobs within the company that would have cost him seniority status. Instead, he remained on extended medical leave.

Once the year was up, the railroad allowed Jeremy to return to work.

He sued anyway, alleging that he had been denied reasonable accommodations and should have been allowed back earlier.

The court disagreed. It said that his one-year leave of absence was a reasonable accommodation, as were efforts to help him find another job. Since he clearly couldn’t safely operate a train until he hit the one-year seizure-free mark, no accommodation would have allowed him to perform the job’s essential function. (Mashek v. Soo Line Railroad, No. 11-487, DC MN, 2012)

Final note: Beware policies that require automatic termination once an employee’s FMLA leave entitlement has expired. You must always analyze the situation under the ADA’s reasonable accommodations process before terminating the worker. If he’s disabled, then start discussing accommodations such as extended leave. If doctors provide an estimated return date, extended leave is a realistic option.

However, if the doctors can’t provide an estimate, no accommodation is required.

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