Be cautious with FMLA firings; ADA, FMLA can overlap — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

When Diantha Smith was diagnosed with breast cancer, she took medical leave covered by the Family and Medical Leave Act (FMLA). While she was on leave, her employer became concerned that she had failed to train her replacement, despite being instructed to do so. As a result, the dealership fired her two weeks before her leave ended.

Smith sued under the FMLA and the Americans with Disabilities Act (ADA) for failure to accommodate her disability. At trial, Smith pointed to her employer's lack of formal emphasis on the importance of training. She argued that her request for FMLA leave was essentially a request for a reasonable accommodation under the ADA, too.

A court awarded damages to Smith for the FMLA claim, but dismissed the ADA claim. Smith appealed the ADA decision, and a federal appeals court sided with her, sending the case back to a jury. Reason: There was evidence that the dealership failed to accommodate her disability, preventing her from performing the essential job functions. (Smith v. Diffee Ford-Lincoln-Mercury Inc., No. 00-6362, 10th Cir., 2002)

Advice: Be extra cautious when firing a worker during FMLA leave. Make sure the job-performance problems were documented before the employee went out on leave. Without a proper paper trail on your side, you'll be taking a major risk. You may have to prove you would have fired the employee anyway, even if she had not taken FMLA leave.

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