An employee who takes
Before leaping from that litigation-prone ledge, consider whether the employee may be covered by the ADA. Not many employees who take leave have ADA-qualifying medical conditions, but your employee might.
First, determine whether the condition that caused the need for FMLA leave brought about any residual injury or illness that qualifies as a disability. To count, the condition must substantially impair a major life function. That takes more than a minor, temporary restriction.
But if the condition does meet the definition, you’ll have to consider possible accommodations.
Recent case: Carole Bolden worked in a radiology department for four years until she hurt her arm in a nonwork-related bus accident. She took 12 weeks of FMLA leave but hadn’t fully recovered when her leave expired. She looked for other open positions with her employer but couldn’t find one that suited her medical restrictions. Her employer’s policy called for termination after being off more than six months, so she lost her job.
Bolden sued, alleging her employer should have accommodated her medical restrictions when she was ready to return to work, even though she was not yet fully healed.
The 3rd Circuit Court of Appeals tossed out her case. It reasoned that her temporary and relatively minor medical restrictions weren’t the sort of thing the ADA protected. The court said the ADA protects only “extremely limiting disabilities—either in the short or long-term.” (Bolden v. Magee Women’s Hospital, No. 07-2545, 3rd Cir., 2008)
- Try to settle FMLA claims: Appeals court says you don't need DOL's prior approval
- Turn to Last-Chance Agreements for Legal Leverage
- You can discharge if there's no way to tell when employee will return to work
- Two doctor visits during incapacity period define a serious condition
- Worker returning from FMLA leave? You can refuse to reinstate