EEOC: Medical Leave Request Initiates ADA Obligations

​An employee's request for Family and Medical Leave Act (FMLA) time off automatically triggers an employer's Americans with Disabilities Act (ADA) obligations, even absent a specific request for reasonable accommodation, the Equal Employment Opportunity Commission (EEOC) argued in a brief in a case that the 3rd U.S. Circuit Court of Appeals is expected to decide soon.

Regardless of whether the EEOC's argument is held to be correct, management attorneys recommend that employers consider FMLA rights first as they are an absolute entitlement; the ADA's reasonable accommodation duty is instead determined on a case-by-case basis.

Hangover 'FMLA Leave'

The case involved a mixing technician for Mondelēz, one of the nation's largest snack food producers, based in Deerfield, Ill. The technician had both hips replaced in 2004. After the surgery, he required intermittent FMLA leave when he experienced periodic inflammation in the hips and legs. This leave was routinely requested and granted.

During one period of inflammation in February 2013, the technician took FMLA leave complaining of leg pain but went to a pub and became drunk. Police pulled him over as he drove home, gave him a sobriety test and arrested him. The next day, he also took FMLA leave, claiming continued leg pain, then returned for his next scheduled shift.

Early the next year, Mondelēz's HR manager read a newspaper article mentioning the technician's arrest, sentencing and parole in connection with the drunk driving incident. Concerned that the incident may have involved a misuse of FMLA leave, the HR department investigated the technician's leave usage and concluded that there was FMLA abuse. Mondelēz then fired the technician for violating the company's dishonest act policy. The policy stated that the company "will not tolerate dishonesty on the part of its employees. … Any employee found guilty of a dishonest act would be subject to dismissal."

The technician sued, maintaining that the company had violated the FMLA and the ADA.

The district court found that Mondelēz's rationale for the discharge—misuse of FMLA leave—was legitimate and rejected the technician's FMLA claim. As for the ADA claim, the court determined that a request for FMLA leave is not alternatively a request for a reasonable accommodation under the ADA and dismissed that claim as well.

The technician appealed. In a brief in support of him, the EEOC urged the 3rd Circuit to clarify that "a single leave request may trigger an employee's rights under the FMLA and ADA simultaneously."

Given what she characterizes as the "dismal" facts of the case, "it is surprising that the EEOC is pushing its agenda at the appellate level," said Joan Casciari, an attorney with Seyfarth Shaw in Chicago. "While I agree that the district court probably went too far in its statements, the case was very strong for the defendant," she added.

FMLA, Then ADA

"FMLA has to be considered first, as an absolute entitlement, but once it is exhausted, hardship becomes an issue," Casciari said. 

She recommended employers adopt a formal accommodation policy that requires employees to make written requests for ADA accommodations on a form that asks each worker seeking a modification to:

• Identify the impairment (though not the diagnosis) that is impacting the worker's ability to perform the essential job functions.
  
• Provide a doctor's certification to support that the employee has a substantial impairment in a major life activity.
• Specify the anticipated duration of the accommodation.
• Identify the requested accommodation(s).
  

Coordination of ADA obligations with FMLA obligations can be tricky. "Sometimes employers outsource FMLA compliance to a third party," said Jonathan Mook, an attorney with DiMuroGinsberg PC in Alexandria, Va. "That can cause problems if the third party is not cognizant of the employer's ADA obligations and the employer does not keep close track of what the third party is doing and saying to the employee in administering the FMLA leave."

Employers should send a letter to the person on leave informing him or her of the date when the FMLA leave ends; employers should also ask the individual in writing whether he or she will be able to return to work on or before that date or within a reasonable time afterwards, as certified by a health care provider, Mook recommended. 

Employers should then determine if an accommodation—such as recuperative leave—is needed, said Patricia Perez, an attorney with Ogletree Deakins in San Diego. Recuperative leave after surgery or cancer treatment commonly is sought, she noted.

The employer not only needs to keep its ADA and FMLA obligations distinct, but it also needs to outline that distinction to the employee, "making clear and precise communications a must," Perez said. "Most employment attorneys and HR professionals would agree that issues related to leave and disabilities are among the most complex and confusing areas of employment law. This becomes exponentially more complicated when you're dealing with both issues—leave and disability accommodation—simultaneously."

Solo ADA Coverage

Sometimes, though, only the ADA will cover an individual. This may happen under a variety of scenarios, said Blythe Lovinger, an attorney with Vedder Price in New York City. For example:

• The employer is not covered by the FMLA but is covered by the ADA. An employer must have 50 or more employees within a 75-mile radius to be covered under the FMLA but only 15 employees to be covered by the ADA.
  

• The employee is not eligible for FMLA leave but the ADA applies. To be FMLA-eligible, a worker must have been employed with the company for 12 months and worked at least 1,250 hours during the 12 months prior to the start of FMLA leave. The ADA has no such requirements.
  

• The employee has exhausted all 12 weeks of FMLA leave allotted in one year but is entitled to more leave under the ADA. If it will not pose an undue burden, a leave of greater than 12 weeks may be considered an ADA reasonable accommodation.
  

"The courts have recognized that unpaid leave of more than a year in most circumstances would not constitute a reasonable accommodation," Mook said. "Nonetheless, there is no hard and fast rule."