Attorneys for Both Plaintiffs, Employers Offer Views on Leave Under the ADA, FMLA

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By Lydell C. Bridgeford  


The interplay between the Family and Medical Leave Act and the Americans with Disabilities Act continues to present new challenges for attorneys who represent either employers or employees in cases of extended medical leave, speakers said at a June 11 seminar presented by the D.C. Bar Labor and Employment Law Section.

“Ironically, the best statement of the ADA's ability to extend medical leave comes not from the ADA, but from FMLA, which states that the ADA allows an indeterminate amount of leave, barring undue hardship, as a reasonable accommodation,” said Avi Kumin, a partner at Katz, Marshall and Banks.

Kumin observed that employees typically think about medical leave in terms of the FMLA or the employer's disability leave policy, but rarely see the ADA as a tool for getting additional leave. In most cases, he contended, the human resources office has informed the employee about leave under FMLA and the employer's short-term disability policy, but not about leave under the ADA.

As a plaintiffs' attorney, Kumin prefers using the ADA for extended medical leave issues because it is “vague and ambiguous as to how much leave time is allowed,” thus giving the employee more maneuvering room.

For FMLA-qualified and potentially ADA-qualified conditions, Kumin said he frequently sees employers send a letter to a worker stating the date on which the 12 weeks of FMLA leave expires and the date the employee has to return work or face termination.

The language in the “letter might be legally correct under FMLA, but not necessarily correct under the ADA,” he added. This may pose a problem for both parties because the employee is being denied additional leave that he or she might be entitled to under the ADA.

“The employer can walk right into an ADA claim by failing to consider what the legal requirements might be under the ADA,” Kumin said.

The attorney said he advises clients who are unsure about a return-to-work date to initially ask for four months and, if additional time is needed near the end of the four months, to then ask for two or three more months.

ADA Offers Employers More Ways to Handle Leave

“The repeated extension for medical leave is one of the most problematic issues that employers are seeing,” said Corrie Conway, of counsel at Morgan, Lewis and Bockius. “It is clear that plaintiffs' attorneys and even doctors are appreciating that the courts have said an indefinite leave request is not reasonable,” she added.

FMLA is rigidly structured and has rigid rules, Conway noted. Under the law, there is no undue hardship exception and the employer must provide the leave. The ADA, however, provides employers with more “tools” for dealing with leave, she said. Reinstatement obligations, however, are more stringent under the ADA compared with the FMLA.

In terms of dealing with repeated extensions for medical leave, Conway said, the Equal Employment Opportunity Commission says in guidance that employers may ask the employee about why the original prediction of the duration of leave was wrong and why more time is needed. She said employers can get some helpful information when pursuing this line of questioning.

In addition, she observed, the employee is not entitled to the preferred accommodation, but to the effective accommodation under the ADA. The ADA is designed to “get the employee back to work and not out on leave,” she said.

Employers need to engage in the interactive process with the employee and the health care provider to determine whether there is an equally effective accommodation that will bring the employee back to work.

Triggering ADA Process

Moderating the panel discussion, Michelle Bercovici, an attorney at Alden Law Group, asked when the interactive process begins.

The “conservative” response to that question, Conway said, is that when an employee with a medical condition requests additional leave “over and above the FMLA, then that has triggered a potential interactive accommodation process.” Once an employee has exhausted FMLA leave, and the situation becomes an ADA issue, employers have to consider whether the individual has a disability, she said.

“There have been a line of cases that have continued to come out that regular predictable attendance can be an essential function of the job,” Conway said. She cited, for example, Samper v. Providence St. Vincent Medical Center, 26 AD Cases 11 (9th Cir. 2012) (63 BTM 133, 4/24/12).

The ADA disability standard is different from the FMLA's serious health condition, “so no one can assume that the individual will automatically be qualified for protection as far as additional leave for accommodation,” she noted. Still, with the Americans with Disabilities Act Amendments Act, “it is clear that the bar has been lowered in defining a disability,” Conway said. “EEOC says that you are not supposed to focus on whether a disability exists, but whether or not you have to accommodate the worker,” she said.

Case Law Likely Outdated

Many cases involving medical leave and pregnancy were litigated and decided under the ADA before the 2008 amendments, noted Sarah Crawford, director of workplace fairness programs at the National Partnership for Women and Families. In her view, those cases need to be taken with “a grain of salt,” given that analyses would probably change because of the 2008 amendments.

She mentioned Young v. United Parcel Service Inc., 27 AD Cases 560 (4th Cir. 2013) (64 BTM 29, 1/22/13), a case in which a pregnant worker was required to take unpaid leave because of a lifting limit of 20 pounds. The U.S. Court of Appeals for the Fourth Circuit upheld summary judgment for the employer.

“This is how most of these cases are being played out under the ADA. One issue that we are seeing is that the courts are drawing distinctions between pregnant workers and workers who are injured on the job. The courts are examining whether employers are providing light duties to some workers, but not to others,” Crawford said.

As an amendment to Title VII of the 1964 Civil Rights Act, the Pregnancy Discrimination Act clarified that employers are prohibited from discrimination based on pregnancy, childbirth, or related medical conditions. Under Title VII, the law requires equal treatment of pregnant employees and other employees with similar ability or inability to work.

Crawford said pregnancy charges filed with EEOC have risen over the past decade by 35 percent.

Bercovici of the Alden Law Group asked Crawford how the Young case would play out differently under the ADAAA, considering that the case arose from pre-ADAAA claims and the 2008 amendments expanded the definition of “regarded as.”

Pregnancy Issues May Be Covered

The ADA has been expanded to cover more temporary types of conditions, so there is a strong argument to be made that pregnancy-related conditions are comparable, she said.

Crawford said she has noticed an increase in cases involving employers with rigid policies prohibiting workers from carrying water bottles in the workplace. She cited Wiseman v. Wal-Mart, 2009 BL 123568 (D. Kan. 2009), a case in which a pregnant retail worker was fired because she needed to carry a water bottle to remain hydrated and prevent bladder infections.

“Under the ADA pre-amendments, pregnant workers are running into some difficulties,” she said.

Congress is considering legislation (H.R. 1975, S. 942) that would require employers to provide pregnant workers reasonable accommodations similar to those already available for disabled workers, she noted.