Case: Employer wins FMLA argument, loses ADA


The two laws are often intertwined

Terrance suffered a nonoccupational ankle injury that resulted in leave for the initial injury, multiple subsequent surgeries, as well as recovery periods. He exhausted all 12 weeks of FMLA leave, but still needed more time off.

The company had a medical leave policy that provided for 270 more days of leave, but when Terrance also exhausted that in May 2018, the company terminated Terrance — on the same day that he indicated he could return to work for sedentary duties.

In response, Terrance contacted the Equal Employment Opportunity Commission, which resulted in the company modifying its policy to reflect that "…employees may request, as a reasonable accommodation under the ADA, a reasonable extension to any medical leave of absence."

From there, Terrance sued, indicating that his termination and filling his job was a violation of the FMLA. In court, the employer countered that the termination didn't happen until six months after the FMLA leave was exhausted. It also did not have a pattern of antagonizing him regarding his leave.

In this respect, the court agreed with the employer. The FMLA leave ended 2/10/18. Ten days later, the company told him it would make every effort to hold his position, but would seek a replacement. His position was filled in May 2018, still three months from the end of the FMLA leave. The employee's FMLA argument didn't fly because of the amount of time between these events.

Terrance also couldn't show that the employer antagonized him over the leave. He did provide one email in which someone from HR indicated that he was "trying to be a problem child." This, however, was not enough. Terrance was not denied any FMLA benefits, and he was not retaliated against because he took the FMLA leave, so his FMLA claims failed.

Terrance's ADA claims, however, did not fail. The court took issue with the employer's argument on whether Terrance could perform his job with or without reasonable accommodation. The employer argued that Terrance failed to show he was cleared for work based on the job description before his medical leave expired in May 2018. The job description, however, didn't indicate whether being able to perform non-sedentary tasks were essential functions. Doctor notes indicated that he could do sedentary work.

The court also took issue with whether the employer engaged in the ADA's interactive process with Terrance to try to find a reasonable accommodation. The employer argued that Terrance requested unlimited leave, which is not reasonable. Whether it actually engaged in that process was unclear. Another issue was whether there were reasonable accommodations that would allow Terrance to return to work. The employer argued there wasn't, the employee pointed out that allowing sedentary work could have been an accommodation. These issues were all left for a jury to decide.

Key to remember: Company leave policies should not be written to exclude leave as a reasonable accommodation under the ADA, or at least they should be flexible in ADA situations. In ADA-related situations, engage in the interactive process, even if you don't believe an accommodation is available. Don't make assumptions.

McCall v. Carbon Schuykill Community Hospital, Inc., Middle District of PA, No. 3:19-cv-2052, August 23, 2022.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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