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Reasonable Accommodation Review Often Needed in FMLA, ADA Cases


By: 
Date: September 13 2004

Employers often face the dilemma in which an employee takes disability leave at the same time he or she takes Family and Medical Leave Act (FMLA) leave. But because disability leave can run much longer than FMLA leave, employers frequently are confused about what steps they can take to protect their rights and their workers´ rights when FMLA leave is exhausted. The key to knowing what to do can be found in the phrase "reasonable accommodation."

As human resources officials and an increasing percentage of the workforce know, the FMLA provides 12 weeks of job-protected leave for the covered absences of eligible employees. There also are state laws that provide similar or additional leave protections. In addition to leave availability surrounding the birth of a child or a need to provide care to a covered family member experiencing a serious health condition, the FMLA provides leave protections in the case of an eligible employee´s own serious health condition.

As noted above, the federal statute´s protections generally extend for a maximum period of 12 weeks within a 12-month period. Thus, even if an employee experiences two events that might independently trigger leave entitlements under the statute, an employee´s FMLA protection is limited solely to 12 weeks. Comparable state leave laws provide periods of protection specified in those statutes.

There are a number of additional sources of leave protection that may apply to an individual´s circumstances, and which are not necessarily preempted or limited by the FMLA. The first of these are the leave and/or benefit policies that an employer may provide to its employees, either unilaterally, or as provided through collective bargaining or individual contract arrangements.

Other Statutes, Other Leave Periods

In addition, other statutes may provide extended periods of leave protection. Some of these may be totally unrelated to an employee´s illness or health condition, such as the military leave rights provided by USERRA or jury duty leave provided by most, if not all, state laws. Of course, one of the most common statutory protections - apart from the FMLA - is one that relates to an individual´s condition: the job protections (or reinstatement rights or priorities) provided by state workers´ compensation statutes. In addition, public employees may have additional, extended leave rights made available by applicable statutes, ordinances or regulations.

Under the Americans with Disabilities Act (ADA) and state laws, employers have two major obligations - they must refrain from discriminating against qualified individuals with disabilities who can perform the essential functions of their jobs, and they must provide "reasonable accommodations" for such protected conditions. The ADA and its legislative history make clear that the scope of "reasonable accommodation" is fairly broad, and it can encompass a range of employer adjustments to an employee´s capabilities and limitations.

The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for enforcement of the ADA. Its regulations and guidance on the scope of that act´s protection has persuasive influence on many courts interpreting the federal disabilities statute, and on state courts and agencies interpreting comparable state laws. In enforcement guidance updated most recently in 2002, the agency indicated that unpaid leave is a form of reasonable accommodation when necessitated by an employee´s disability. Leave may be required for a number of reasons related to that disability, including obtaining medical treatment, recuperating from an illness or episodic manifestation of the disability, obtaining repairs on assistive devices, "avoiding temporary adverse conditions in the work environment," training a service animal or receiving training in the use of Braille or to learn sign language.

Regarding the ADA and its relationship to FMLA protections, several important distinctions must be noted. The FMLA-protected "serious health condition" is not identical to the scope of the category of ADA-protected individuals who have "disabilities" within the meaning of the federal discrimination statute, particularly as it has been defined in interpretive rulings by the U.S. Supreme Court.

The terms of the ADA alone are quite distinct: an individual has a disability for purposes of the ADA if they have a physical or mental condition that limits one or more major life activities, a history of such a condition, or they are regarded as having such a condition. Conditions protected under the ADA are, by their nature, long-term limitations rather than short-term or temporary impairments. Thus, many circumstances affecting an employee would fall into the category of the FMLA´s "serious health conditions," but not into the category of ADA-protected disabilities.

In another respect, the FMLA is more expansive: the statute provides leave rights to eligible employees in almost all covered circumstances (outside the limited category of "key employees"). By contrast, the ADA´s important obligation to "reasonably accommodate" an individual´s disability can be limited by the accompanying statutory concept of "undue hardship," which limits the scope of the accommodation requirement.

Assessment Standards

Many employers often confront situations in which it appears that an individual who has exhausted the full extent of statutory leave rights under the FMLA also may be an individual protected under the ADA or a comparable state statute, which includes additional leave as a potential reasonable accommodation. In such cases, employers must make an assessment of whether that coverage determination is accurate, the scope and type of accommodation that is requested, and the reasonableness of that desired accommodation.

In the case of leave as a potential reasonable accommodation under disability discrimination laws, the question often focuses on whether the period of potentially desired leave is known, and whether the scope of that accommodation is reasonable. In Wood v. Green, 323 F. 3d 1309 (11th Cir. 2003), cert. den., 124 S. Ct. 467 (2003), the 11th U.S. Circuit Court of Appeals held that an employee who experienced cluster headaches was not subject to unlawful discrimination when he was terminated for excessive absenteeism. The employee sought an accommodation of indefinite leaves of absence so that he could work at some uncertain point in the future.

As noted by the court, "the ADA covers people who can perform the essential functions of their jobs presently or in the immediate future," and in Wood, the individual´s inability to do so established that he was not a "qualified individual with a disability" meriting protection under the federal disabilities statute, a holding that the Supreme Court left undisturbed in a filing that sought its review of the case.

In Wood, the court looked at "immediate future" as one factor to be considered in assessing how reasonable a requested accommodation was. However, the phrase is not defined in the statute or in the regulations. Many courts will apply common sense as to what is reasonable. Therefore, if there is a specific projection of when one can return - even if it´s long, perhaps four to six months - a court may entertain the possibility that that length of time could be a reasonable accommodation measure. If there is no realistic projection of any kind as to when the employee could return to work, then a court may take the opposite view.

Each Case Is Unique

Other courts have rejected claims of discrimination under the ADA on the same basis, such as a ruling earlier this year in the case of a diabetic worker pursuing legal relief who had a record of a large number of unapproved absences over an extended period of years. (Brenneman v. MedCentral Health System, 366 F. 3d 412 (6th Cir. 2004); (see story in the July 2004 newsletter, p. 1).)

At the same time, employers must remain cognizant of the fact that every case considered under the ADA - including determinations of disability status and, importantly, reasonable accommodation efforts as well as "undue hardship" conclusions - requires an individualized analysis, a fact that makes broad conclusions about the limits of mandated accommodations difficult.

For example, an employer who accommodated an employee´s bad back by allowing her to work a reduced schedule for 10 years failed in its effort to have her disability discrimination case dismissed when it refused to continue the accommodation (Larson v. Seagate Technology, 2001 WL 1608844, 13 A.D. Cases 856 (D. Minn. 2001)). In that instance, at the summary judgment phase of the case, the fact that the long-term accommodation appeared to have posed no undue hardship essentially counted against the employer´s efforts to dismiss the case.

If some employers find making accommodations for employees for 10 years, as in the Larson case, to be quite burdensome, a question they might then ask is: how long can an accommodation go on? Unfortunately, there is no simple "cut and dry" answer. What is a "reasonable accommodation" will vary with the employer´s size and resources, the individual´s condition and the outlook for the condition.

Courts may very well see the obligation to accommodate a worker´s disability as being very substantial. A court might extend a different type of accommodation - such as a reduced schedule, or duties limited to performing a job´s "essential functions" rather than all job tasks - rather than indefinite long-term leave.

The lesson of the developing case law is that an employer´s FMLA obligation to provide leave may be only one element to consider when an employee seeks an expanded period of leave, particularly if that request is premised on an asserted disability that may have protection under federal or state law. While employers have been pleased (and disability rights advocates frustrated) by the courts´ relatively narrow reading of the ADA´s protections in certain circumstances, that statute and comparable state laws clearly may trigger expanded leave rights through a reasonable accommodation that may be appropriate in a particular case. For that reason, careful analysis and the advice of legal counsel would be prudent before taking any precipitous action in such a scenario.

This article was excerpted from the Family and Medical Leave Handbook by Thompson Publishing Group. More information on the Handbook is available at www.thompson.com.



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