GUEST POST: FMLA & ADA: Never the twain shall meet? (Part II)

Today, Janette Levey Frisch is back as guest blogger to wrap up her two-part series on the interplay between the between the Americans with Disabilities Act and the Family and Medical Leave Act. (You can read Part One here).

Janette is In-House Counsel at Joule, Inc. where she provides comprehensive legal representation and support to a staffing company with five subsidiaries throughout the East Coast. You can connect with Janette on Twitter here and on LinkedIn here.

Click through to read more about how the FMLA and ADA may cross paths in your workplace….

(And if this awesome two-part series inspires you to want to guest blog at The Employer Handbook? Email me.)

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Let’s discuss the some relevant ADA basics. Title I of the Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA defines an individual with a disability as someone who: 

• Has a physical or mental impairment that substantially limits one or more major life activities;
• Has a record of such an impairment; or
• Is regarded as having such an impairment.

Is Anna (from yesterday’s post) an “individual with a disability” and if so, how? Anna appears to have at least one impairment that substantially limits one or more major life activities. Unfortunately, that raises another question: how do we define “major life activity”? What major life activities does Anna’s condition substantially limit? Examples of major life activities would be seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. We do know from the facts we are given that Anna’s condition substantially limits her ability to walk. There may be others, but for now we know that Anna is covered under the ADA.

OK, so the ADA also applies to Anna. So what? She exhausted her FMLA time and cannot perform the essential functions of her job after 12 weeks of FMLA leave. Wouldn’t that now make her no longer qualified to perform her job? Why isn’t that the end of the inquiry? Someone with the skills and experience necessary to perform the essential functions of a job, who, but for the disability in question, could perform the job, is entitled under the ADA to reasonable accommodations from the employer. What exactly is a “reasonable accommodation”? The ADA defines it as a modification or adjustment to a job or work environment that will enable a qualified individual with a disability to apply for a job or to perform the essential functions of a job. Some examples are: acquiring or modifying equipment; providing qualified readers or interpreters; appropriately modifying examinations, training, or other programs, reassigning a current employee to a vacant position for which the individual is qualified, if the person is unable to do the original job because of a disability even with an accommodation. Reasonable accommodations can also include modifications to attendance and leave policies. If Anna will likely be able to return to work after 14 weeks, then the extra 2 weeks of leave are probably a reasonable accommodation. Similarly, if Anna can perform the essential functions of her job with some occasional time off to attend follow-up medical treatment and adjustments to her workspace, then those too might be reasonable accommodations.

What if TSDWC cannot give Anna the accommodations she is requesting? That depends on why TSDWC is unable to provide the accommodations. If the accommodations Anna has requested are an undue hardship to TSDWC, then TSDWC need not provide those accommodations. That is not the end, however. TSDWC will then have to speak with Anna and try to find other accommodations that will be both effective in addressing the issues presented by Anna’s impairments and feasible for TSDWC.

How does an employer determine that a requested accommodation is an “undue hardship”? By performing an individualized assessment, based on the following factors:

• The nature and cost of the accommodation;
• The overall financial resources of the facility making the accommodation, number of employees at the facility, and the effect on expenses and resources at the facility;
• Location, financial resources, size and number of employees in other facilities if the facility where the employee works is part of a larger entity;
• structure and functions of the workforce, geographic separateness and administrative or fiscal relationship of facility involved in making the accommodation;
• Impact of the accommodation on the operation of the facility.

Applying these factors, is the extra two weeks’ unpaid leave an undue hardship? Probably not. Courts usually require more than employees’ complaints about extra work to show undue hardship. If however, TSDWC could show that every day that Anna was absent without an actual replacement cost TSDWC significant monetary amounts, or severely hindered the efficient operation of the accounting department then maybe the extra two weeks’ leave time would be an undue hardship. If Anna merely said she needed additional leave time but was unable to give a fixed date of return, that too would likely be an undue hardship, and TSDWC would not have to agree to that additional time. Short of that, the extra two weeks of leave is probably not an undue hardship. Terminating Anna just because she requested that extra leave time then, would likely be an ADA violation.

What about the time for follow-up treatments? This too may be another example of a reasonable accommodation. If Anna is missing one day a month of work for chemotherapy, will she fall behind in her work? Will her co-workers be unable to complete their work? If no, then the time off for the treatments is probably not an undue hardship. (Please note that if Anna had not already used up all her FMLA time, she could use remaining FMLA time to keep her appointments. That would be known as “intermittent FMLA”, a topic beyond the scope of this discussion.) Remember, employees who are eligible for FMLA time may use it regardless of whether such leave causes undue hardship. What if the cost of providing these accommodations is felt to outweigh the benefit? Can TSDWC deny the request? No. Cost-benefit analysis has no place in determining if a request for an accommodation presents an undue hardship. What if an employee requests an accommodation that is incredibly costly? Can it deny the request then? Maybe. The employer must first consider all possible sources of funding, including outside sources. Undue hardship is then determined based on the net cost. If the net cost would still be prohibitive the employer may propose a less costly alternative, as long as it is effective. For example, suppose that in addition to inside, the front entrance to the building where Anna works has stairs. Anna requests that TSDWC install a chair lift. TSDWC has investigated all possible sources of funding and feels the net cost is prohibitive. TSDWC offers an alternative: it has a less used side entrance that has no stairs and proposes that it will make that entrance accessible to her and will temporarily set up a workspace for her that is close to that entrance. TSDWC has likely offered an alternative that is an effective and reasonable accommodation and therefore it would not have to grant Anna’s request.

Suppose Anna would be returning to work when year-end or quarterly reporting must completed and a temp has been performing the work in her place? If bringing her up to speed in time is just not feasible does TSDWC still have to reinstate her? If so, must it be to the same job? If Anna were simply returning from 12 weeks’ FMLA leave, undue hardship would not be a factor as long as Anna were able to perform the essential job requirements. Under FMLA, if Anna cannot perform the essential job requirements, she does not have to be reinstated to her old job or to another job. What about the ADA? If restoring Anna to her former position presents an undue hardship TSDWC must see if it has a vacant equivalent position or a position at a lower level for which Anna is qualified and to which Anna can be assigned without undue hardship. If such a position is not available, TSDWC does not have to reinstate Anna.

So what are some take-aways for employers?

• You must conduct an individualized assessment of both your and the employee’s specific circumstances.
• Re-visit your company’s attendance and leave policies. Inflexible, no-fault attendance policies probably violate both the FMLA and the ADA (and perhaps also Title VII of the Civil Rights Act, which addresses employment discrimination).
• Document the impact that an employee’s leave time has on your operations. If, for example, you incur extra costs training a temporary replacement or if others have to take on extra work and cannot work as efficiently, documenting that may help you prove that additional leave time is an undue hardship.
• If your employee asks for accommodations based on a disability, engage in dialogue with him or her in order to determine if a less costly, less difficult yet effective alternative exists.
• Consult with competent employment counsel!