Bob has been out on FMLA for 12 weeks. 12 weeks I have had to keep his job open and now that he left me one employee short for 12 weeks he calls and tells me that he can’t come back to work yet. I told him enough is enough. If he does not come back tomorrow, I am going to fire him.

No problem right? WRONG! FMLA is only the first issue when an employee is out on leave. Managers also have to keep in mind the ADA. Because when an employee tells a manager that he/she might not be able to return from leave, such a statement could constitute a request for a “reasonable accommodation” under the ADA.

The ADA requires employers with 15 or more employees to provide disabled employees with a “reasonable accommodation” when an employee requests such an accommodation. Requesting an additional leave of absence even after 12-weeks of FMLA leave could be a request for a “reasonable accommodation” under the ADA even if the employee does not use the exact words “reasonable accommodation” and even if the employee does not mention the ADA at all.

Managers need to understand that once a disabled employee requests a reasonable accommodation by asking for an additional leave of absence, the employer’s obligation to engage in the “interactive process” is triggered and if the employer fails to engage in the interactive proves and/or worse terminates the employee, the employer subjects itself to claims that it has violated the ADA.

What does the interactive process require? It requires a back and forth between the employer and the employee to determine:
1.        Whether the employee is a “qualified individual with a disability” and
2.       If he/she is, then what accommodation based on medical information from the employee’s health care provider together with the job description, will enable the employee to be able to perform the “essential functions” of the job?

Keep in mind that the employer is not obligated to always give the employee the precise accommodation that the employee requested. Rather, the employer is required to provide an accommodation that will enable the employee to perform the essential functions of the job. Managers don’t really need to worry about determining what accommodation should be provided to the employee. This is usually the job of Human Resources and the in-house legal counsel. But managers do need to know that when the employee calls at the end of their FMLA leave saying they are still sick and need additional time out of work, the manager may not fire the employee. Moreover, the manager should consult with and advise human resources so that human resources and the in-house counsel can engage in the interactive process with the employee and provide a “reasonable accommodation” which might be additional time out on a leave of absence.

The manager should also be careful to adequately document all of this so that if the employee later claims violation of the ADA, the employer can defend its actions by demonstrating in a court of law that it engaged in the “interactive process” and that it provided the employee with a “reasonable accommodation” in accordance with the ADA.
Leave of absence issues can be tricky for employers. However, understanding the employer’s requirements under both the FMLA and the ADA will enable the employer to ensure compliance with these important leave laws and help avoid liability in any future litigation that may arise.

Submitted by: Melissa Fleischer, Esq.
President
HR Learning Center LLC
http://www.hrlearningcenter.com
melissa.fleischer@hrlearningcenter.com
As President of HR Learning Center LLC, Ms. Fleischer provides proactive solutions to management including on-site seminars and on-line webinars on a variety of employment law issues including sexual and unlawful harassment, workplace violence, FMLA and ADA. Ms. Fleischer can be contacted at 914-417-1715 or via e-mail at Melissa.fleischer@hrlearningcenter.com
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