You can suggest FMLA leave without triggering ADA liability

Sometimes it may feel as if the FMLA and the ADA are impossibly complicated and contradictory laws. You have to allow up to 12 weeks unpaid FMLA leave for a serious health condition, but you also know you can’t second-guess a disabled individual’s ability to work without risking a lawsuit because you “regarded” the person as disabled.

So what do you do if you think an employee, especially one whose performance is declining, could benefit from taking FMLA leave? Do you plant the suggestion or wait until the employee approaches you?

The fact is, you can suggest FMLA leave for a serious health condition and not run afoul of the ADA, as the following case shows.

Recent case: Mark Robinson, an IT worker at Lockheed Martin, took four weeks off after suffering a seizure.

Over the next two years, Robinson’s performance deteriorated. HR eventually called him in to discuss a performance improvement plan (PIP). Robinson then asked if his seizure disorder factored into his evaluation.

Management then decided not to put Robinson on a PIP. But his supervisor did suggest Robinson ask for FMLA leave if he needed time off to deal with stress.

Robinson sued, arguing that because his boss suggested he take FMLA leave, he regarded him as disabled and unfit to work. The court disagreed and dismissed the case. It said that the FMLA and ADA use different standards. Regarding someone as having an FMLA-qualifying condition is not the same as regarding the person as being disabled under the ADA. (Robinson v. Lockheed Martin, No. 06-1704, 3rd Cir., 2007)