Here we present a leave-related workplace scenario—inspired by an actual court case—that’s intended to help HR professionals better understand an employer’s responsibilities under the Family and Medical Leave Act (FMLA). In this scenario, a police officer who took FMLA leave to recover from an injury asks to be assigned to light or desk duty or take further leave. The department denies her requests and ultimately terminates her for failure to return to work. Does she have a case against the department for failure to offer her a reasonable accommodation under the ADA and retaliation under FMLA?
The Facts
Sandra, a SWAT member at the city’s police department, breaks her leg while jogging and undergoes surgery the next day. She is unable to return to her position following the surgery and takes FMLA leave. Prior to her designated return date, Sandra requests light duty or desk duty for when she returns. Her request is denied and she is told that if she does not return to work in her former capacity she will be deemed to have resigned.
Sandra sends an e-mail to the police chief, Ross, renewing her appeal for light duty or desk duty or, in the alternative, requesting FMLA leave and any other available medical or other leave because she does not expect to be able to return to work for at least another month. Sandra provides medical certification that she will require at least 1 to 2 more months of physical therapy and that she will not be able to participate on full duty as an officer—especially with SWAT duties. Her doctor states that he is willing to certify her need to continue to be off work for at least another 3 months, if necessary.
Ross tells Sandra there are no available positions that meet her physical limitations and that she has been terminated for failure to return to work after exhaustion of her FMLA leave. Sandra sues, alleging that the city failed to offer her a reasonable accommodation in violation of the ADA, and retaliated against her for taking FMLA leave.
The Law
In Silva v. City of Hidalgo, 575 Fed. Appx. 419 (5th Cir. 2014), the case on which this hypothetical is based, the 5th Circuit Court of Appeals ruled in favor of the employer, holding that the employee, Silva, failed to state a claim under either the ADA or the FMLA.
Questions
1. What are the employer’s obligations to Sandra since she is not able to return to work at the end of her leave (but may be able to in the future)?
FMLA. Under the FMLA, if the employee is not able to perform an essential function of the position because of a physical or mental condition, including a continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. If the employee fails to return to work on or before the date that FMLA leave expires, the right to reinstatement also expires.
If an employer does not have a light-duty program, it is not required to create a light-duty program to accommodate an employee returning from FMLA leave. An employer is also not required to alter an existing position to make it light duty if that means eliminating essential functions.
Note: As we saw in the hypothetical case on reduced schedule leave (Santiago’s cluster headaches), an employee’s inability to perform essential functions of the job does not affect the employee’s right to take FMLA leave (but it may impact his or her right to reinstatement at the end of leave).
ADA. An employee who returns to work, but is no longer qualified for the position because of a physical or mental condition that is a result of a continuing serious health condition, may be entitled to reasonable accommodation under the ADA. An employer may be required—as a reasonable accommodation under the ADA—to reassign marginal functions of a job, but it is not required to reassign essential functions.
Under the ADA, a reasonable accommodation may require reassignment to a vacant position. Once an employee has made a request for an accommodation, it may be necessary for the employer to initiate an informal, interactive process with the qualified individual with a disability in need of accommodation in order to craft a reasonable accommodation.
In this case, Sandra asked about reasonable accommodations by requesting (more than once) to be placed on light duty or desk duty. Ross (presumably) investigated the possibility and determined that there were no such positions available. Under the ADA, for the accommodation of a reassignment to be reasonable, a position must first exist and be vacant. Unless Sandra can show that there was an available position she was qualified for, she is not entitled to reinstatement as a reasonable accommodation under the ADA.
FMLA regulation: FMLA 29 CFR Sec. 825.216
ADA law and regulation: 42 USC Sec. 12111(9)(B); 29 CFR Sec. 1630
2. What should the employer have done if Sandra was cleared to return to work with restrictions?
Assuming that the employer has properly required a fitness-for-duty certification (FFD) (see requirements, below), the employer should examine Sandra’s return-to-work certification to determine whether the restrictions apply to the essential functions of her job, or whether the restrictions apply to nonessential functions.
If Sandra is not able to perform the essential functions of her job (with or without reasonable accommodation), she is not entitled to protection under either the FMLA or ADA. If reasonable accommodation will enable her to perform the essential functions of her job (and that accommodation does not impose an undue burden on the employer’s operations), the employer should provide the accommodation.
Requiring return-to-work/fitness-for-duty certification. Prior to permitting an employee to return to work, an employer may request that an employee provide a fitness-for-duty certification (FFD). However, the employer may only require an FFD if it notified the employee in the initial FMLA designation notice that it would require an FFD in order to return to work. The employer may also require that this certification address the employee’s ability to perform the essential functions of her job, but only if the employer provides a list of essential functions to the employee at the time that the employer gives notice to the employee that she is eligible for FMLA leave.
Fitness-for-duty certification requirements must be made as part of a “uniformly applied policy or practice” that requires all similarly situated employees who take leave for certain medical conditions to obtain fitness-for-duty certification. In other words, the employer must require that all employees in certain occupations and with certain serious health conditions present fitness-for-duty certification in order to return to work after an FMLA leave (e.g., all airport luggage handlers with back injuries must obtain fitness-for-duty certification before returning to work).
Content of certification. An employer may seek a fitness-for-duty certification only with regard to the particular health condition that caused the employee’s need for FMLA leave. The certification from the employee’s healthcare provider must certify that the employee is able to resume work.
Assuming that the employer has given appropriate notice to the employee of the FFD requirement and a list of essential functions to the employee as part of the initial FMLA designation, the FMLA’s regulations permit an employer to require a simple statement that the returning employee is able to perform all essential duties of his or her job.
Generally, an employer should not require that an employee be completely healed or have no restrictions upon his or her return to work from FMLA leave. Requiring complete healing or no restrictions on work will most likely be perceived as discrimination against an employee with a disability who may be able to perform the essential functions of the position with or without a reasonable accommodation under the ADA. The ADA requires that employers make an individualized assessment of whether an employee can or cannot return to work. A policy that requires no restrictions or complete healing before return to work bypasses the process of individualized assessment.
FMLA regulation: 29 CFR Sec. 825.312
3. What should the employer do if Sandra is only temporarily unable to perform the essential functions of her position?
In such circumstances, under the FMLA the employer can offer a light-duty assignment as an alternative (to keep Sandra working), but she has the right to take FMLA leave instead. This is Sandra’s choice, not the employer’s. If she chooses a light-duty job instead of FMLA leave, the time worked in the light-duty position cannot count against the FMLA leave allotment.
Under the ADA, an employer is not required to create light-duty work, but if it does, it can create this position on a temporary basis. (See the EEOC’s Enforcement Guidance: Workers’ Compensation and the ADA, Question #29.) The determination of what is “temporary” and what is not may be set by the employer and may be open to discussion as part of the interactive process of ADA accommodation.
FMLA regulation: 29 CFR Sec. 825.207(e)
ADA: EEOC’s Enforcement Guidance: Workers’ Compensation and the ADA
4. What if she is unable to perform essential functions in the long term?
According to the court in the Silva case, under the FMLA, if the employee is unable to perform an essential function of the position because of a physical or mental condition, including a continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. If the employee fails to return to work on or before the date that FMLA leave expires, the right to reinstatement also expires.
Under the ADA, reasonable accommodation does not require an employer to wait indefinitely for the employee’s medical conditions to be corrected. The question of how long is too long is dependent on the specific facts. Sandra requested at least one month and up to three months more to take physical therapy and return to work. Sandra could not (or simply did not) provide an estimate of when she could resume her former job duties except to say that it would be longer than one month in the most optimistic scenario. The court in Silva held that this was too long.
FMLA regulation: 29 CFR Sec. 825.216(c)
ADA regulation: 29 CFR Sec. 1630.15(d)