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Weigh ‘reasonableness’ when considering ADA time off after employee has taken FMLA leave

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in FMLA Guidelines,Human Resources

By now, you probably realize that an employee who can’t return from FMLA leave right away because she hasn’t improved or recovered enough may be eligible for more time off as a reasonable accommodation. That’s the case if her condition qualifies as a disability and a short but definite additional leave period would allow her to once again do her job.

What you may not realize is that while FMLA is an entitlement, ADA-focused leave isn’t. A variety of factors may make more time off un­­rea­­son­­able, a factor you should consider when assessing whether you will offer more time off.

The bottom line is that if you can show that the financial and logistical costs are unreasonably high, you don’t have to extend time off as an ADA reasonable accommodation.

Recent case: Comfort worked as a licensed practical nurse (LPN) in a senior living facility in Eden Prairie. She was responsible for 160 assisted-living patients on the overnight shift, when she was the only LPN on duty.

Comfort began to experience severe knee pain due to degenerative joint disease and arthritis. She had knee-replacement surgery and requested 12 weeks of unpaid FMLA leave for the surgery and subsequent recovery.

She tried to return to work after the facility notified her she would soon be out of FMLA leave. Comfort was told she could return with a medical clearance showing she was ready to resume her job. She provided a doctor’s note stating that she could not kneel, squat or lift more than 50 pounds, but that she was otherwise cleared to return to work.

Comfort asked for reasonable accommodations under the ADA. She wanted the ability to call for assistance when she needed to lift a patient, or have an aide regularly assigned to help her. Otherwise, she wanted to take an additional six weeks off until she could return without restrictions.

Her employer rejected her request for help. Instead, it fired her.

Comfort sued, alleging that she should have been reasonably accommodated with either extra on-the-job assistance or more time off.

The employer argued that any of the three possible accommodations amounted to an economic hardship. It had already spent $8,000 to cover the shifts Comfort had missed while on FMLA leave and couldn’t afford more. Nor, it argued, was it feasible to foot the bill for a full-time aide or to make sure another able-bodied individual was always on hand to lift patients.

The court sided with the employer. Although the $8,000 spent during Comfort’s FMLA leave was something the employer had to swallow because FMLA time off is an entitlement regardless of cost, that wasn’t the case for ADA accommodations. Under the ADA, economic and other factors like other employee hardship can be considered.

In this case, the court concluded the cost was too high for any of the proposed accommodations. Com­­fort’s case was dismissed. (Attiogbe-Tay v. S.E. Rolling Hills, LLC, No. 12-1109, DC MN, 2013)

Final note: You only have to consider more time off as a reasonable accommodation if the employee has an estimated return date. Unlimited time off is never reasonable.

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