In this article series, we’ll focus on the intersection of the Family and Medical Leave Act (FMLA) and how it affects many other laws, including the Americans with Disabilities Act (ADA), workers’ comp, and other state laws that apply to medical or disability leaves. In our last installment, we covered the ADA and what happens when it intersects with FMLA leave. In this installment, we’ll take a closer look at FMLA leave as a reasonable accommodation under the ADA and how to handle attendance issues.
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Leave as a Reasonable Accommodation
Both a leave of absence and intermittent or reduced schedule leave may be required as a reasonable accommodation of a disability under the ADA. The question is whether the leave will enable the employee to perform essential job functions. For example, allowing an employee who suffers from severe depression to take a few months off to seek treatment may enable him to return to work.
Leave as a reasonable accommodation can be an issue in several situations:
- When an employer does not have enough employees to be a covered employer under the FMLA;
- When an employee otherwise does not qualify for FMLA leave; and
- When an employee with a disability has exhausted her FMLA leave entitlement.
The employer may be required to offer leave as a reasonable accommodation in all of these situations unless doing so would cause an undue hardship.
Telecommuting As A Reasonable Accommodation
In EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. Mich. 4/22/14), the 6th Circuit Court of Appeals ruled that telecommuting may be a reasonable accommodation under the ADA when an employee can effectively perform all work-related duties at home. The court was careful to state that it was “not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs.”
The 6th Circuit’s decision makes telecommuting an option that many employers will need to consider when an employee requests reasonable accommodation for a disability. When weighing a telecommuting request, employers should consider whether an employee’s physical presence is actually required in the workplace, and should review communication options that may provide alternatives to physical attendance in the workplace.
Attendance Policies
Under the ADA, an employer may not apply a “no-fault” leave policy to terminate a disabled employee after he or she has been on leave for a certain period of time. Instead, the employer must modify its no-fault leave policy to provide the employee with additional leave, unless: (1) there is another effective accommodation that would enable the person to perform the essential functions of the position or (2) granting additional leave would cause an undue hardship.
If the employee is reasonably accommodated, an employer may enforce attendance rules, especially if regular attendance is an essential job function. In Mecca v. Florida Health Services Center, Case No: 8:12-cv-2561-T-30TBM (2014), the U.S. District Court for the Middle District of Florida, Tampa Division held that attendance is an essential function of the job.
The court noted that an employer does not have to wait indefinitely for an employee’s medical condition to be corrected, especially when it is uncertain whether the condition will improve. In the Mecca case, the employee took leave on numerous occasions and the leave did not improve his ability to have regular attendance, nor was there any indication that it would do so at any point in the near future. As a result, the court held that leave was not a reasonable accommodation.
Under the FMLA, employees may not be terminated or otherwise penalized for absences sanctioned under the FMLA. Adverse employment action for FMLA leave under a “no-fault” attendance policy is not permitted. In our next installment, we’ll look at coordinating the FMLA with other discrimination laws.