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Extended Leaves Under FMLA/ADA Lessons Learned from Recent Case Law
EXTENDED LEAVES UNDER FMLA/ADA: 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.
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. 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.
Following a jury trial, the jury found in favor of the employer, and the employee appealed. The appeals court upheld the jury verdict. The court noted that an employee on FMLA is not entitled to some “superprotected” status, but rather is entitled to the same rights, benefits, or position of employment had the employee not taken the leave. Of course, the employer bears the burden to prove that the employee would have been terminated regardless of the FMLA leave. Practical Observation: While the evidence of the layoff seemed compelling, it is interesting to note that the case went to a jury. It is interesting that this case was not dismissed at summary judgment.
Reinstatement/Reassignment Challenges As noted above, in dealing with managing leaves, it is helpful to remember, from the start, the purpose behind the laws which govern. These laws appear in tension at times because one law (FMLA) says to grant an employee a leave and the other law (ADA) says to get the employee back to work.
Plus, the rules under the ADA as to what accommodations can be considered as “effective” (and allow the employer to insist the employee accept as an accommodation) will depend somewhat on whether the employee remains eligible for FMLA. So, for example, if an employee can perform an alternative job and such an alternative job is available, an employee who remains entitled to FMLA leave can choose to remain on a leave of absence rather than accept the alternative assignment. The ADA, on the other hand, as an accommodation statute, informs employers to get the employee back to work. While one alternative effective accommodation is continued leave, another effective accommodation is the reassignment to a vacant job for which the employee is qualified.
Case law in the past appeared to hold that, if an employee could not return to his or her prior job after FMLA leave due to certain restrictions that prevented him or her from performing the essential functions of the job, then an employer could see if an alternative job was available. If there was an available job, the employer could then insist that the employee accept that job as an accommodation (at that available job’s pay rate) or be terminated for refusing to return from leave. But, is that still the case? Or, especially if the restrictions are temporary and not yet declared permanent, must an employer consider extended leave as the “better” alternative?
In Wirtes v. City of Newport News, 996 F.3d 234 (4th Cir. 2021), the court’s holding could be seen as favoring extended leaves, at least for a time, rather than a forced reassignment. There, the employee, a police officer with the City of Newport News’ (City) police department, developed a permanent condition that did not allow him to wear a duty belt. After a history of accommodating his limitations in other assignments, the City made changes to increase the number of officers patrolling the City, including detectives where this employee had been assigned as an accommodation, and requiring all officers to wear a duty belt. The City also changed its policy to limit light-duty assignments to no more than eight months. Given that the employee could not meet the requirements of his job, even as a detective, he was placed on light-duty status. When his allotted eight months of light-duty drew to a close, the City informed the employee that wearing a duty belt was an essential job function. The City asked him for a list of potential accommodations that would allow him to perform that function. The employee explained he could not wear a duty belt, but requested the accommodation of a shoulder holster, which he had worn since 2011. Alternatively, he proposed an exemption as a detective from the requirement to wear a standard uniform and from patrol duties. The City concluded that he could not perform the essential functions of his job as a detective and then offered him the options of either retiring early or accepting reassignment to a civilian position he did not want.
In holding in favor of the employee, the court reasoned that it is generally inappropriate for an employer to unilaterally reassign a disabled employee to a position the employee does not want when another reasonable accommodation exists that would allow the disabled employee to remain in their current, preferred position. In addition, while reassignment is an acceptable accommodation, it should be considered a “last-resort” alternative. In cases of forced reassignment, an employer should consider accommodating employees in their current position before considering reassignment.
Practical Discussion: While this case did not involve an employee returning from leave, it did involve an employee whose light-duty assignment was ending, which is analogous. So, if an employee at the conclusion of an FMLA leave cannot return to his or her regular job, must an employer consider an extended leave as a “better” accommodation than the “last-resort” alternative of reassignment?
This case would appear to say yes. But, a few other points to consider:
(1) It goes without saying, but deserves repeating – at this time in the “leave-management” process, the interactive discussion is critical.
(2) If the employee accepts reassignment versus continued leave, then the reassignment works (obvious).
(3) However, if the employee wishes to stay out on leave, a few other considerations are important.
Are the condition and its restrictions temporary or permanent? If temporary, the employee may have a better argument for extended leave. If permanent, the interactive discussion should incorporate a question about why extended leave will make a difference.
Could an extended leave be justified? Perhaps. While there is no requirement under the ADA for “indefinite leave,” the employee may prefer to remain on leave hoping that another, more desirable job becomes available.
What about pay? Of course, FMLA leave and extended leave can be unpaid, which will incentivize a return to work, and if the employee has qualified for short-term disability benefits or workers compensation, then his or her refusing to return to an available job.
Stay tuned, as the process for managing leaves has become (perhaps) even more complicated (if that were even possible). As savvy employers know, the field of managing leaves of absence are fraught with peril (land mines, if you will), and employers should seek competent counsel in navigating through the process.
Tim K. Garrett (tgarrett@bassberry.com) is a member at Bass, Berry & Sims PLC in Nashville. He counsels employers on issues related to all aspects of labor and employment law.
