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Question: Our employee is about to exhaust her 12 weeks of leave pursuant to the Family and Medical Leave Act Leave (FMLA) and she still cannot return to work. Her health care provider has indicated that she must remain out of work and has not provided a return to work date. May we terminate this employee at the end of her 12-week FMLA leave or must we consider approving additional leave?
Answer: You should always consider your obligations under the Americans with Disabilities Act (ADA) when an employee has exhausted his/her rights under the FMLA. However, in a case with facts analogous to those stated above, the federal First Circuit Court of Appeals (which covers New Hampshire) recently held that an employer does not have to grant an employee’s request for open-ended or indefinite leave under the ADA after an employee has exhausted her FMLA leave. (See Henry v. United Bank)
Facts: The employee worked for a Bank as a commercial credit analyst. In January 2008, the employee’s neurologist diagnosed her with a spinal cord compression in her cervical spine. She began physical therapy and worked with accommodations provided by the bank. When the employee’s symptoms worsened, she requested a leave of absence beginning July 1, 2008. In late September, as her 12 weeks of FMLA leave were about to expire, the employee provided a note from her neurologist that stated that she would need to "remain out of work until further notice."
After reviewing the note, the Bank informed the employee that it could not continue to hold her position open indefinitely, and as a result, it terminated her employment. Shortly thereafter, Henry filed a lawsuit claiming FMLA retaliation and disability discrimination.
Favorable Court Ruling for Employer: The Court dismissed the employee’s entire lawsuit. The Court found that the employee had been afforded her 12 weeks of leave under the FMLA as required, and that the Bank had terminated her following this leave for non-retaliatory reasons. The Court noted that the Bank made several workplace accommodations for the employee when she started to experience physical symptoms. In addition, the Bank held her position open for 12 weeks and contributed to her group health insurance during that period, even though the employee never submitted the appropriate medical documentation to supporting the FMLA leave. The Court found no evidence of retaliation against the employee for exercising her rights protected by the FMLA.
Likewise, the Court found that the Bank’s request for an open-ended or indefinite leave was unreasonable under the ADA. The court found that the employee failed to present "an estimate as to expected recovery time or the possibility that she may be able to perform any portion of the essential functions of her sedentary credit analyst position." As such, the Court concluded that the laws against disability discrimination do not require the Bank to take a "wait-and-see approach" with no clear idea of when, if ever, the employee might be able to return to work.
It is important to note that in reaching its decision, the Court highlighted the significant evidence the Bank offered on the "undue hardship" it would suffer if required to extend this employee’s leave of absence. Specifically, the Bank detailed the extra work required by two other credit analysts during the employee’s FMLA leave; the inability for the bank to rely upon temporary workers in this highly regulated and confidential area of financial work; the lack of any other employees to substitute on a temporary basis; and the increase in the amount of work due to the economy and recent changes in the industry.
Best Practices for Employers: Employers should regularly communicate with employees who take a leave of absence under the FMLA and confirm in writing the employee’s return to work date and/or the last day of the leave. If an employee is unable to return to work following the expiration of an approved FMLA leave, and requests an extension of leave time, the employer should engage in the ADA's interactive process to determine whether a reasonable accommodation is necessary. The Equal Employment Opportunity Commission ("EEOC") has said that a short term and/or definite leave of absence may be a required accommodation. The EEOC has also expressly discouraged employers from implementing a blanket, "one size fits all" leave policy for all employees that requires termination after a specific time period, and instead encourages employers to evaluate leave requests from employees with protected disabilities on an individualized basis. If an employer plans to deny additional leave, it should be prepared to document how the continued absence of the employee significantly impacts the company’s business operations and causes "undue hardship."
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