ADDITIONAL LEAVE AFTER FMLA MAY BE REQUIRED UNDER ADA

The settlement of a recent lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) highlights an important point regarding the interaction of the American with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) that often gets overlooked: the ADA may require additional leave beyond the leave provided by FMLA.

The EEOC’s lawsuit alleged that Groendyke Transports, Inc. and McKenzie Property Management violated the ADA when they terminated two long-term employees who had exhausted their FMLA leave entitlements and needed additional leave (EEOC v. Groendyke Transport, Inc and McKenzie Property Management, Inc. f/k/a McKenzie Tank Lines, Inc.., Case No. 3:19-cv-02830-RV-EMT). According to the lawsuit, one of the employees had requested and was denied three additional weeks of leave once FMLA was exhausted. The other employee needed approximately one additional week of leave. Both employees were instead terminated. According to the EEOC, it was company policy to terminate employees who were not able to return to work after exhausting their leave entitlement under FMLA.

In addition to $65,000 in monetary relief to settle the lawsuit, the company also must provide training to their employees on their obligations under the law, develop, implement, and maintain anti-discrimination and anti-retaliation policies, and post a notice informing employees of their right to contact the EEOC if they feel they have been discriminated or retaliated against.

In the press release announcing the settlement, EEOC regional attorney, Marsha Rucker, stated, “Policies that lead to the automatic termination of employees immediately upon the expiration of FMLA leave conflict with the ADA – specifically, its requirement that an employer engage in an interactive process with an employee to determine whether an accommodation that does not create an undue hardship is possible … Additional leave can be a reasonable accommodation.”

What remains unclear in cases like these is how much additional leave is reasonable. That likely will differ from case to case. However, the EEOC and courts agree that the ADA does not require or support indefinite leave as a reasonable accommodation. In 2017, the First Circuit Court of Appeals held that an employee’s request for 12 months of additional leave was not reasonable (Echevarria v. Astazeneca Pharaceuticals, 2017 U.S. App. LEXIS 7774 (1st Cir. 2017)) and the Seventh Circuit Court of Appeals held that a “multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA” (Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017)). Would an additional one to three weeks be considered reasonable? The EEOC appears to believe so.

As the settlement of this lawsuit makes clear, employers would be best advised to consider all applicable state and federal laws before making a decision regarding employment. Failure to do so can have costly consequences.

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