EXTENDED LEAVES UNDER FMLA/ADA:
Lessons Learned From Recent Case Law By TIM K. GARRETT and KRISTIN TITLEY
Experienced human resources professionals know that managing leaves of absence under the Family and Medical Leave Act (FMLA) and under the Americans with Disabilities Act (ADA) continues to be a challenge. These challenges continue in large part due to the following: 1. The challenges inherent in the administration of the FMLA, especially as it related to intermittent leave and unforeseeable leave. 2. The challenges from the “tension” created by the seemingly inconsistent purposes of the two laws – the FMLA, which tells employers to grant leave so that an employee can stay out of work, and the ADA, which tells employers to provide accommodations (including leave) to get an employee back to work. 3. The challenges inherent in required “case-by-case” nature of the ADA accommodation process. This article will not attempt a full and complete resolution to all of these challenges (if it were even possible), but it will discuss some lessons to be learned from recent cases and provide some helpful tips in dealing with these challenges.
Overview of Relevant Law
In dealing with managing leaves, it is helpful to remember, from the start, the purpose behind the laws which govern. This discussion will focus in the two main federal laws – the FMLA and the ADA – but savvy HR professionals know that state laws may also apply. It is wise to recall that the FMLA is essentially a leave statute. It entitles an eligible employee to take job-protected, unpaid leave for up to 12 weeks for various reasons, including his or her own serious health condition – the reason in play here. The ADA, on the other hand, is primarily an accommodation statute. It informs employers to engage in an interactive discussion with a qualified individual with a disability in an attempt to get the employee back to work. And, for our purposes here, among the available accommodations is a continued leave – even after the FMLA has expired. Flawed Investigation and Employer Animus -- Gurne v. Michigan Bell Telephone Co. (2011) In this example, the employee was approved for intermittent FMLA leave based on migraines and anxiety, but was terminated for FMLA fraud. A co-worker reported seeing the employee at a birthday party during a shift for which she had called off, claiming FMLA. The employee consistently denied that she was there during her shift and explained that her condition had improved, allowing her to attend the party after the end of her shift. The co-worker continued to report otherwise. The employer conducted an investigation and later terminated the employee. The employee sued. The employer claimed that it was entitled to dismissal of the case on summary judgment due to the “honest belief rule.” But, noted the 12
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court, an employer’s “honest belief ” must be based on a “reasonably informed and considered decision.” Here, explained the court, it was a “she said/she said” situation, but the investigation was lacking. The investigator admitted that she didn’t have the exact time the employee arrived at the party, and that she assumed the employee could have been there earlier, but could not know “for sure.” Her report had suggested another interview with the employee, which was not done. In addition, the employee’s direct supervisor testified that he learned of the employee’s suspected FMLA fraud from the manager in a conversation during which he told the manager that he was not surprised and had long had the “impression” that the employee was not putting forth the effort to come to work when she could. He also admitted that he was part of the process that led to her termination and that he had been told to prepare her exit package long before the investigation had been completed. Practical tip: Often, how you do what you do is as important, or more important, than what you do. Here, a cynical supervisor tainted the employment decision, had been asked to prepare termination paperwork before the investigation was completed, and the investigation failed to complete its own recommended re-interviewing of the employee on an essential fact, meaning the decision was based on an assumption. Note, in contrast, the case of Capps v. Mondelez Global, LLC, 847 F.3d 144 (3d Cir. 2017). There, an employee who had long been receiving intermittent FMLA leave due to continued certifications every six months, was caught by an HR manager taking FMLA leave to appear for an arrest date and for court dates relating to a DUI conviction. After a thorough investigation, the employee was terminated. The employer’s summary judgment was affirmed. The court focused on the employer’s continuous recertification of the employee’s FMLA leave over many years, and the fact that none of the employee’s requests for FMLA leave was denied and there was no issue in his returning to work after his approved FMLA leave.
Is an Employee’s Right to Reinstatement After FMLA Absolute?
Savvy HR managers will know that the answer is no. As mentioned above, misconduct can be a reason that an employee is not reinstated. But, what about a layoff? Can an employer layoff an employee who is out on FMLA leave? Yes. In Barger v. First Data Corp., 851 Fed.Appx. 278 (2021) (unpublished), the employee took continuous FMLA leave for cancer treatment. During this leave, the employer instituted a layoff of mid-management as a cost-savings measure. On January 10, 2017, the day after the final decision had been made to eliminate several management positions, including the employee’s position in the layoff, the employee submitted a note that he would return from leave on January 17, 2017. The employee was terminated in the layoff and filed suit.
