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The AR Group

Liability Lurking — The Interplay of FMLA and ADA

By Julie Morris

Readers of our blawgs know that we often comment about how legal and regulatory changes routinely drive the need for business owners to adjust internal policies, processes, and sometimes strategies. ?The significance of this point is made more evident as a result of a series of EEOC Charges ? all resulting in employer liability –?that bring clarity around the important interplay of the FMLA and the ADA and why employer policies and processes requiring termination of employment following an extended leave of absence require editing.? In light of the costs borne by the employers involved in each of these actions, employers are encouraged to carefully review FMLA and related leave policies and processes to ensure that HR practices do not run afoul of the EEOC?s articulated and increasingly clear compliance standards.

To illustrate the issue, consider the following scenarios:

Scenario One:

Employee takes FMLA leave. ?Employee?s protected leave status ends, but Employee is not released to return to work. ?Employer leave policy simply states that automatic termination applies to all employees who are absent for a certain period of time. ?Employer terminates? Employee in accordance with its policy and practice.

Scenario Two:

Same facts as above except that Employee is not immediately terminated; Employer permits Employee to remain on an extended leave, perhaps believing that Employee will be ?released? in the not too distant future.? The extended leave eventually ends, again without Employee being released to return to work. ?Employer terminates Employee in accordance with its policy and practice.

?What?s the Problem??

A few years ago Sears Roebuck and Co. (?Sears?) engaged in a practice, as outlined in Scenario One. ?The EEOC filed a Charge of Discrimination against Sears asserting that it violated the ADA by failing to provide an extension of protected leave status as an ?accommodation? under the ADA. ?Sears ultimately agreed to pay $6.2 million to resolve the Charge. ?The EEOC similarly later sought action against UPS because its leave policy required automatic termination after 12 months of medical leave (Scenario Two). ?The EEOC reached an administrative determination that UPS’s? leave policy violated the ADA in that it required automatic termination after 12 months of medical leave (Scenario Two).? The EEOC specifically noted that: ?[P]olicies like this one at UPS, which set arbitrary deadlines for returning to work after medical treatment, unfairly keep disabled employees from working.? ?More recently, in 2011, the EEOC charged Supervalu, Inc. with discrimination when it failed to provide employees on disabilty leave ?return to work offers.? ?Supervalu, Inc. ultimately?entered into a consent decree with the EEOC agreeing to send written return-to-work offers to employees on disability leave who could be ?reasonably accommodated.?

In a related and very recent development, the EEOC charged United Airlines, Inc. with violating the ADA by requiring workers with disabilities to compete for vacant positions for which they were qualified and which they needed in order to continue working. ?On appeal with the Seventh Circuit, the court held that a “reasonable accommodation” under the ADA may require employers to provide employees with disabilities with “reassignment to a vacant position” when the employee cannot be accommodated in his or her current position.? (EEOC v. United Airlines, 1:10-CV-01699, U.S. Dist. Court, No. Dist. of Illinois; EEOC v. United Airlines, No. 11-1774. 7th Cir.)? Although this decision was appealed to the United States Supreme Court, the Court did not grant review and, as a result, the Seventh Circuit decision stands.

These cases make clear that an employer?s management of employee leave requests and the return to work process be handled with complete understanding of the interplay of FMLA with the ADA.? Each of these rulings also highlight how day-to-day people management issues often involve application of policies that are ever evolving through regulation and case law.? Accordingly, we, at The AR Group, continue to encourage employers to undertake regular review of their policies and practices (i.e., at least once a year) to ensure that the they are up-to-date and continuously updated on recent legal and regulatory developments that have bearing on their operations and risk.

Smart Tip:? Because the interplay between the FMLA and the ADA is often complex, employers are encouraged to seek legal advice and counsel before taking adverse action against an employee in a protected (or ostensibly non protected) leave status.