Employees are entitled to 12 weeks’ unpaid
But what happens if that same employee who qualified for leave also has a qualified disability under the ADA, a disability that could be accommodated with additional time off or a job modification?
Before you discharge someone unable to return to her old job after 12 weeks, consider whether she is disabled and can be accommodated—if she asks.
Recent case: Teresa Bialaszewski took 12 weeks’ FMLA leave for depression and then another 12 paid weeks under her company’s paid, short-term disability policy. She didn’t return to work or reapply for open positions after the company told Bialaszewski her job had been absorbed into other positions.
She sued, alleging both and ADA disability discrimination.
But the court threw out both claims. It said the FMLA only guaranteed a return to work after 12 weeks, and that the ADA and Ohio’s disability discrimination laws require employees to let their employers know they are disabled and need an accommodation. Bialaszewski never asked to return to her old job, nor did she request an accommodation that would have allowed her to return. (Bialaszewski v. Titanium Metals, No. 2:06-CV-1063, SD OH, 2008)
Final note: Employees have to ask for accommodations. As an employer, you shouldn’t inquire whether an employee needs those accommodations if the person doesn’t identify herself as disabled. That can lead to another lawsuit based on “regarding” an employee as disabled.
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