FMLA and ADA: well intentioned but the devil to administer. In yesterday’s Advisor, attorney Susan Fahey Desmond covered job protection under FMLA and ADA; today, job restoration, light duty, and undue hardship, and an introduction to the “FMLA Bible.”
Desmond’s remarks came at the recent BLR National Employment Law Update in Las Vegas. She is a shareholder with Watkins Ludlam Winter & Stennis PA in Gulfport, Mississippi.
Job Restoration Rules
The laws also vary in what is required in the way of job restoration, Desmond notes:
- ADAAA. You must consider whether you can hold the job open the employee had at the time of the LOA w/o undue hardship.
- FMLA. The employee is entitled to be restored to the same position held or a substantially similar one.
Is it a hardship to keep a job open? Desmond notes that it depends on the situation. In one case, a bank fired a teller after a year off the job because of its absolute rule requiring termination after one year. But the court said that since the bank was losing and hiring tellers on a constant basis, it was no hardship to keep the job open.
Failing to Designate FMLA Leave
Because FMLA leave is job-protected, you want to designate it and start it running. If you fail to designate, then a person can be out on workers’ comp, and then tack 12 weeks of protected FMLA leave on top. “Once you have sufficient knowledge, run it!” Desmond says.
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Light Duty
Light duty is an area where a lot of mistakes are made, Desmond says. Workers’ compensation carriers will encourage you to give light duty because it takes the person off their roster.
If employees are offered light duty and refuse, they generally lose their workers’ compensation benefits. But that doesn’t mean fire them, Desmond warns. They still may have FMLA rights and you can’t make them choose between light duty and FMLA.
Let them run out their 12 weeks or get released for full duty, and then deal with them, she suggests.
Undue Hardship
Leave is required under FMLA even if creates an undue hardship; leave is not required under ADA if creates an undue hardship.
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