Viewpoint: After FMLA Leave, When Can an Employer Safely Terminate an Employee?

When an employee exhausts leave under the Family and Medical Leave Act (FMLA) and cannot return to work, does the law require the employer to provide the employee with additional leave? Question 1A surely is close behind: Can the employee safely be terminated at that point?

Without debate, these are among the most difficult HR issues an HR professional or in-house employment counsel faces.

On Sept. 28, in Davis vs. Columbus Consolidated Government, the 11th Circuit Court of Appeals ruled that a bus operator for the public transportation system in Columbus, Ga., could be fired when, after exhausting 12 weeks of FMLA leave for back pain, he needed an additional nine weeks leave under the Americans with Disabilities Act (ADA) to undergo and recover from back surgery.

The Facts

James Davis suffers from back pain due to spinal stenosis (a condition in which spaces within the spine narrow). Because of the intense pain, he took 12 continuous weeks of FMLA leave. After 12 weeks, he was not ready to return and he provided documentation from his physician indicating that he would undergo surgery, resulting in nine more weeks off work. His physician confirmed Davis would be able to return to his bus operator position after the end of nine weeks.

The City of Columbus, however, needed a bus driver and couldn't wait an additional 9 weeks for Davis to return. The city argued that his extended absence would cause increased overtime expenses, overburden operators, and increase recruiting and training costs, thereby imposing an undue hardship on Columbus.

Days after the request for ADA leave, the city terminated Davis's employment because it believed his extended absence would create a hardship on its operations.

Is this a problem?

In defense of Davis's ADA lawsuit, the city argued that it would have been required to incur significant overtime costs, and the forced overtime likely would cause other employees to resign. Replacing the position and training someone up in the meantime also would take quite some time, heavily impacting such a small operation.

The 11th Circuit agreed, noting that:

• The employees' absence would cause "significant difficulty or expense," given the size of the relevant workforce and the number of bus routes.
  

• The negative impact of his absence on the city's other bus operators.
  

• The difficulty of scheduling operators to cover its bus routes while holding open Davis's position.
  

• The cost of overtime pay.
  

• The expected loss of trained and experienced personnel as a result of forced overtime.

Insights for Employers

What's the lesson here for employers?

My friend and ADA expert, David Fram, noted several lessons in a LinkedIn post, and I think they're worth using as a guide when approaching these situations:

• Leave under ADA can extend beyond FMLA if it's not an undue hardship.
  

• The 12-weeks under FMLA can be taken into account in determining whether the total amount of requested leave causes an undue hardship.
  

• The job should be held "open" while the employee is on leave.
  

• The effects on co-workers (and how much longer/harder they have to work) is a CRITICAL factor in determining undue hardship, especially when the workforce is small or specialized.
  

• An employer can certainly argue cost (this is one of the few Court of Appeals cases discussing "cost"). But I still think it's dangerous to even raise cost as a factor because it potentially opens up an employer's financials to a smart plaintiff.

I agree with Fram in all respects and, in particular, on a few points:

Employers can (and should) assess "undue hardship" earlier in the process.

As we know, the ADA requires an employer to provide a reasonable accommodation to a qualified individual with a disability unless the accommodation causes an undue hardship on the employer. When it comes to leave, employers generally conduct the undue hardship analysis only after the employee has exhausted FMLA leave and is requesting additional leave as an accommodation.

However, an employer can and should take the 12 weeks of FMLA leave already provided to the employee when considering whether additional leave would create a hardship. Employers have the flexibility as early as "day one" of an employee's FMLA leave to assess whether the absence constitutes an undue hardship. Although FMLA would protect that employee's job for up to 12 weeks, the employer now has an argument that an undue hardship —if properly supported, of course—occurs after FMLA is exhausted.

Raising the issue of cost is risky.

As Fram noted, it is a dangerous proposition to raise cost as a factor in an undue hardship analysis, or at least in the same high-profile manner that the City of Columbus did in this instance.

But effects on co-workers can be a winner. 

This is so important. If employees are taking on the extended hours, projects and duties left behind by the absent employee, this is quickly going to be a problem. And it's a concept that is easily articulated to a court. Use this "burden on others" to your advantage when making an undue hardship argument.

When an employee is seeking an accommodation—especially here where they are seeking additional leave beyond FMLA leave—the age-old principles still apply:

Engage your employee in the interactive process.

It's not entirely clear from the facts whether this was done to any great extent here, but start the conversation off right by engaging the employee about his return to work. You'll want to discuss:

• What limitations does the employee have?
  

• What functions can he/can't he perform?
  

• Are there any modifications we can make to his job to help him get back to work?
  

• Have we discussed restructuring his position or temporarily relocating the employee to an open position for which he is qualified?
  

• Can we provide any other accommodation other than leave to help him stay on the job?

The Equal Employment Opportunity Commission's decision to initiate litigation against an employer in these situations often hinges on whether the employer is to blame for the breakdown in this interactive process, so it is critical to master this step.

Conduct an undue hardship analysis and use this information in the interactive process.

Before putting up a fight over whether to provide additional leave and how much to give, doesn't it make sense first to analyze the impact the employee's absence is having on your operations? If it's not impacting your operations, this will be a key factor in granting additional leave. However, if it is impacting operations, you want to memorialize this earlier in the process.

In Davis's case, his absence would continue to impact operations—for example, overtime increased, employees were forced to work longer hours to cover for him, recruiting and training would require significant amounts of time.

Once you have conducted this analysis, tell the employee about it. Both in person (if possible) and in follow-up correspondence, tell the employee (tactfully and with empathy to his situation) the difficult position you're in—that x, y, and z are occurring as a result of his absence—and, as a result, it is critical that you obtain a reasonable estimate of when he will be able to resume all essential functions of his employment so that you can better assess whether leave can be provided as a reasonable accommodation.

Consider these factors below when analyzing whether the requested leave of absence poses an undue burden on your operations:

• Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error.
  

• Lower quality and less accountability for quality.
  

• Lost sales.
  

• Less responsive customer service and increased customer dissatisfaction.
  

• Deferred projects.
  

• Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees.
  

• Increased stress on overburdened co-workers.
  

• Lower morale.

There is no one-size-fits-all approach to these real-life situations. However, by regularly communicating with employees and documenting how they have engaged in the interactive process, employers clearly have a leg up in minimizing ADA and FMLA liability.

Jeff Nowak is a shareholder at Littler, an employment and labor law practice representing management, and author of the FMLA Insights blog, where this article originally appeared in a slightly different form. © 2020 Jeff Nowak. All rights reserved. Republished with permission.

[Visit SHRM's resource page for the Family and Medical Leave Act.]