Balancing time off with reasonable accommodations can be tough if one of your employees is covered by both theand the ADA. You must be especially careful if a disability means an employee needs to take her 12 weeks of unpaid , but can’t quite return to work without an accommodation.
Here’s why the interplay may trip you up: An employee who takes FMLA leave is entitled to return to her job (or an equivalent) once she has used up her leave. Employers can be charged with interfering with FMLA leave if they don’t offer reinstatement. But if the employee can’t do the job without an accommodation, some courts have said that the reinstatement offer isn’t a meaningful one. Plus, refusing to make a reasonable accommodation may be an ADA violation.
That’s two legal claims for one incident. To make matters worse, supervisors, managers and HR professionals who intentionally interfere withcan be held personally liable.
Recent case: Cynthia Gillingham worked for GEICO Direct for almost 20 years. In 1997, she was hurt in an auto accident, sustaining severe injuries to her back and neck. She also suffered from clinical depression and general anxiety disorder. She had several operations and continued to have problems working the 7 am to 3:30 pm shift. She asked for a reasonable accommodation, and GEICO temporarily allowed her to work from 5:30 am to 1:15 pm based on her doctors’ recommendations that she avoid stress. She claimed working later in the day was stressful.
Then GEICO withdrew the accommodation and forced Gillingham to work her former shift. She claimed that schedule made her problems worse and caused her more anxiety and acute emotional stress. In fact, her doctors certified that she had a serious health condition as defined in the FMLA. She then took 12 weeks’ FMLA leave.
While she was home, GEICO sent her a letter stating that if she didn’t return to work the day after her FMLA leave expired, she would be deemed to have abandoned her job. She didn’t show, and GEICO discharged her.
That’s when she sued, alleging that her disability had not been reasonably accommodated and that GEICO had interfered with her right to return to work. Her argument? She claimed that by not discussing accommodations, she was denied any meaningful return right. The court agreed and ordered a trial. (Gillingham v. GEICO Direct, No. 06-CV-2915, ED NY, 2008)
Bottom line: Employees returning from FMLA leave also may be entitled to additional unpaid time off. While the FMLA specifically provides 12 weeks, the ADA calls for reasonable accommodations. Determining how much time off is reasonable can be tricky. Courts will look at both the employee’s condition and your resources to determine whether the time off is reasonable. Because each situation is different, there is no magic number employers can use.
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