Human Resources News & Insights

The common FMLA policy that EEOC is investigating

A troubling new trend in employment law is about to bite a lot of unaware employers in the rear.

That’s because a lot of FMLA leave cases are automatically becoming ADA cases when the employee has exhausted all possible leave and is still unable to return to work.

So while you could terminate such employees under FMLA because they have no more leave coming, you can’t under ADA because now you have to engage in the interactive process to see if they can still do their old jobs with some kind of reasonable accommodation.

As a matter of fact, the Equal Employment Opportunity Commission (EEOC) has served notice it’s aggressively looking for companies that have automatic termination policies after an employee has missed specified periods of work, contending that such policies violate ADA.

“They’re going after those automatic terminations hard,” says Cheryl Stanton of the Ogletree Deakins law firm.

Assume the worst

That’s the stark warning sounded at the recent Labor & Employment-law Advanced Practices (LEAP) symposium in Las Vegas.

Your best defense, say the attorneys, is to assume that all FMLA cases, as they near the end of the legal leave period, will become ADA cases and start asking the employee, as well as their relevant healthcare professionals if appropriate, if they will be able to perform the essential parts of their jobs with or without a reasonable accommodation.

As you await answers from workers or their healthcare professionals, you have to give them three chances to remedy any deficiencies in paperwork. In the meantime, your best bet is to put them on an unpaid leave of absence, rather than terminate them.

Tiptoeing through the minefield

Other significant issues can arise as employers tiptoe through a minefield of conflicts and overlaps between FMLA and ADA:

Light duty:ADA does not require the creation of light-duty assignments. Companies like to consider light duty to get people off workers’ compensation insurance rolls and save money on workers’ comp premiums.

Note: If employees don’t like the light-duty assignment offered and still have FMLA leave, they can refuse the light-duty job and take FMLA instead.

Avoid ‘stacking’:If an employee is out on workers’ comp temporary total disability, designate the time away from work as FMLA leave anyway, so they won’t be able to refuse light-duty and then take FMLA, stacking one type of leave on top of another.

Fitness-for-duty certifications: In this area the FMLA and ADA laws differ significantly. Under FMLA you may ask for them, but under ADA they’re illegal. Under ADA you cannot insist on a medical release of the employee to “full duty” if they are able to perform the essential functions of the job with an accommodation.

Medical exams: Any medical exam you request must be limited to the cause of the injury under workers’ comp and to the cause of the leave under FMLA. Any contacts with healthcare professionals under FMLA must be conducted by HR or an employer-designated practitioner, not by the employee’s supervisor.

Health insurance: Under FMLA they’re entitled to it, but people out on a temporary ADA leave of absence are not – unless people out on other leaves do get it also.

Confidentiality: ADA requires separate collection and retention of documents and confidentiality, which also applies to info collected for FMLA. Exceptions: supervisors’ need-to-know restrictions, for first aid and safety, and for government audits.

Reinstatement: For people returning from leave, FMLA requires reinstatement to an equivalent job, but under ADA, if the cause of the leave was a disability, reinstatement to another job, even a lesser one, may be a reasonable accommodation.

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  • Ramona

    With reinstatement, it is dangerous to reinstate to a lesser position under the ADA also, if the basis for moving to a lesser position is the ADA leave.

  • MM

    We have (what we consider to be) a very generous leave policy where we permit those with serious health conditions to remain out of work for one year (FMLA + an additional 9 months of leave). After the one year period has expired, because regular and predictable attendance is required as an essential duty of all of our positions, we will terminate employment if the employee will not be released (light duty or otherwise) in the foreseeable future. However, as we near the one year mark, we communicate with employees and if release is possible/probable in the near future, we will accommodate a reasonable extension beyond the one year maximum. I would assume this would be sufficient since it would be a hardship for an employer to provide indefinite leave and since we do engage in an interactive accommodation process, but looking for input from others…what do you think?

  • Inquiring Mind

    How does this apply to employers who are using their Employee Assistance Program (EAP) providers to facilitate the otherwise illegal dismissal of an employee who has no known or diagnosed disabiiity? For example, an employer who doesnt want to investigate an employee’s report of sexual harassment, racial discrimination, in the workplace etc. so the employer illegally retaliates against the employee by making a “mandatory referral” of the employee to the EAP for false reasons. The employee hasn’t asked for and isnt on any kind of Leave, yet the employer makes statements to the EAP that the employee is somehow disabled and can no longer work?