Interplay of FMLA and ADA Precludes Employers from Automatically Terminating Employees at End of FMLA Leave

Q: Can my company fire an employee once the person has exhausted his or her FMLA leave entitlement?

A: Many employers are surprised to learn that they may not necessarily terminate an employee if he or she does not return to work at the end of FMLA leave.  Under the Family Medical Leave Act (FMLA), an employee is eligible for up to 12 weeks of unpaid job-protected leave.  Upon returning from FMLA leave, except in a few limited situations, an employee is guaranteed the right to return to the same position or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment that the employee held before the leave commenced.  Under FMLA regulations, however, an employee does not have a right to return to work if he or she is unable to perform the essential duties of the position.

But what if the employee asks for more time off after the FMLA leave period has expired?

Once an employee has exhausted his or her FMLA leave, the Americans With Disabilities Act (ADA) requires employers to consider whether an extension of leave is warranted as a reasonable accommodation of a disability. An extended leave may be a reasonable accommodation if it is for a finite period of time to receive treatment or to recover from a disability.  Employers must consider each situation on a case-by-case basis, engaging in the interactive process with the employee to determine whether the employee has a disability within the meaning of the ADA, and whether an extended leave would be a reasonable accommodation to enable the employee to perform the essential functions of the job once he or she returns to work.  Employers also must determine whether there are any applicable state laws or worker’s compensation laws that are implicated.

In addition to considering the application of the ADA to each employee’s situation, employers should ensure that their employee handbooks do not contain return to work policies that violate the law. Language that calls for automatic termination after the employee has been absent for a certain period of time may give rise to liability for failure to consider the impact of the ADA.

Renee C. Manson

 

Is an ‘Honest Belief’ of FMLA Misuse Enough for Termination?

Q.  Can I discharge an employee if I believe that he or she is misusing FMLA?

A.  According to a recent Third Circuit opinion, an employer’s honest belief that its employee misused FMLA leave is sufficient to defeat an FMLA retaliation claim, even if the employer was mistaken.

In Capps v. Mondelez Global, LLC, 847 F.3d 144 (3rd Cir. 2017), the company granted the employee intermittent FMLA leave for flare-ups as a result of hip replacement surgery.  On February 14, 2013, Capps took intermittent leave. That evening, he went to a pub and became severely intoxicated. On his way home, Capps was arrested for driving while intoxicated and spent the night in jail. He was scheduled to work the next afternoon, but called out again. Approximately six months later, Capps pled guilty to the DWI charge and served 72 hours in jail immediately following the guilty plea hearing.

The company’s HR manager learned about Capps’s arrest and conviction when he read about it in a local newspaper. The company then learned that the date of Capps’s arrest and subsequent court dates coincided with dates when he had taken intermittent FMLA leave. The plaintiff was terminated for violating company policy and sued, claiming that the company discriminated against him by terminating his employment in retaliation for taking FMLA leave. The lower court granted summary judgment on the ground that the company acted on an honest belief that Capps had misused his FMLA leave.

On appeal, the Third Circuit affirmed. Significantly, the court concluded that the company met its burden of demonstrating a legitimate, nondiscriminatory reason for the plaintiff’s discharge — the fact that Capps was terminated for misusing FMLA leave in violation of company policy. The court concluded that it is enough if the employer provides evidence that the reason for the adverse employment action was an honest belief that the employee was misusing FMLA leave, regardless of whether that belief turned out to be true.

Although the “honest belief” defense provides support for employers to take action based on a sincere belief that an employee misused FMLA leave, employers are cautioned to be careful in invoking this defense. Before terminating an employee for misusing FMLA leave, be sure to have objective evidence of misconduct. It is likely in most cases that it will be a jury question whether the employer’s belief was, in fact, truly honest.

— Tracey E. Diamond