Know the leave factors to consider when the FMLA and the ADA might both apply
Employees eligible for FMLA coverage are entitled to 12 weeks of unpaid leave to deal with a serious health condition, as well as pregnancy, childbirth and child care following birth or adoption. The ADA requires employers to reasonably accommodate disabled employees.
Many employers believe that if an employee needs accommodations for a disability that’s related to the same serious health condition covered by the FMLA, they don’t have to provide any additional leave once the employee has used 12 weeks of FMLA leave. That’s not always true.
In fact, additional unpaid leave after FMLA leave has been exhausted may be a reasonable accommodation under the ADA. The question, of course, is how much additional leave is reasonable?
That, unfortunately, is not very clear.
Recent case: Ann Cortez, a longtime Raytheon employee, went out on a medical leave of absence related to her pregnancy. During her leave, Cortez suffered from postpartum depression and other physical ailments. As a result, she was unable to return to work as scheduled.
She applied for and received both short-term and long-term disability benefits, and Raytheon extended her leave of absence beyond any FMLA entitlement.
After Cortez had been out on leave for about a year, Raytheon asked her to return to work. Cortez claimed she was medically unable to do so at that time. However, she said her doctor believed it was “extremely probable” she could return in two months. Raytheon refused to extend the leave of absence another two months and terminated Cortez.
She sued for disability discrimination and a failure to accommodate her disability under the ADA.
A federal district court in Texas granted Raytheon’s motion for summary judgment, ruling the company did not have to extend Cortez’s medical leave of absence, even though she claimed she probably would be able to return to work in two months.
The court favored Raytheon’s argument that the ADA doesn’t require employers to approve indefinite leave. It said the doctor’s certification that Cortez might be able to return to work in another two months wasn’t certain.
The court went on to say that showing up for work is an essential job function, so indefinite leave is essentially unreasonable. (Cortez v. Raytheon Company, No. 3:08-CV-0801-K, ND TX, 2009)
When an employee asks for more time off as accommodation
What should employers do when an employee requests time off as a reasonable accommodation for a disability?
The best approach: Determine whether the request is for a specific time period, or for indefinite leave. If doctors can’t give a concrete return date, chances are a court will find the ADA doesn’t require granting the request.
If the request includes a specific return date, however, you should consider the request. The shorter the requested leave, the more likely it will be considered a reasonable accommodation.
Remember that the ADA also requires employers to engage in an interactive accommodations process. That applies to unpaid leave, too. Try offering alternatives such as part-time work or work from home to show your good-faith efforts.
