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More time off after FMLA shows good faith

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in FMLA Guidelines,Human Resources

Here’s a practice that can save you from a needless lawsuit: Employees who have used up their FMLA leave may be eligible for more unpaid time off as a reasonable accommodation under the ADA.

Once an employee is close to using up her FMLA leave, warn her that she needs to return to work. Give her a deadline. If she doesn’t respond, you can safely assume she won’t be able to later claim she needed more time off as a reasonable accommodation for a disability.

Recent case: Jillian, who is black, worked as a manager for a national retail chain. She had several disciplinary write-ups when she didn’t take breaks as instructed. Then she claimed she was so stressed that she needed FMLA leave, which her employer granted. During her time off, she told the company that her stress was related to alleged racial harassment. HR launched an investigation and tried to engage Jillian, but she never returned their calls.

Then, as she approached the end of her 12 weeks of FMLA leave, the retailer sent her a letter outlining her options. She could return after an additional three weeks off or provide additional medical information to support a request for even more time off. The letter stated that if she did neither, she would be presumed to have quit. When she didn’t show up, she was ­terminated.

Jillian sued, alleging race discrimination and that she was fired in retaliation for taking FMLA leave.

The court didn’t buy her claims, noting that the company had bent over backward to give her an opportunity to address alleged discrimination and had provided more leave than she was legally entitled to. (Hallman v. Abercrombie & Fitch, et al., No. 2:13-cv-02139, CD CA, 2013)

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