United States: ADA Considerations Following Exhaustion of FMLA Protected Leave

With the January 2009 enactment of the Americans with Disabilities Act Amendment Act (ADAAA), the scope of the American's with Disabilities Act (ADA) has been significantly broadened, expanding the number of individuals considered disabled under the ADA. This, in turn, increases the number of individuals who may be entitled to various forms of accommodation in connection with the exhaustion of Family and Medical Leave Act (FMLA) leave.

ADA Scope Expansion

The ADAAA expands the ADA's coverage in four primary ways. First, the basic statutory definition of an individual covered by the ADA remains the same. That is, Title I of the ADA protects qualified applicants and employees who:

• Have a current physical or mental impairment that substantially limits one or more major life activity;
• Have a record of such an impairment;
• Are regarded by their employer as having such an impairment, even if the applicant or employee, in fact, does not have such a condition; and/or
• Have a known relationship or association with a disabled individual, regardless of whether the applicant or employee is or has been disabled.

However, the ADAAA adds the activities of eating, sleeping, standing, lifting, bending, learning, reading, concentrating, thinking and communicating to the nonexclusive list of "major life activities" previously established by EEOC regulations and court precedence (i.e., caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working). In addition, the ADAAA adds an entirely new list of "major bodily functions" to its definition of "major life activities", including but not limited to "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." This adds a new class of impairments to the ADA.

Second, mitigating measures for disabilities other than "ordinary eye glasses or contact lenses" cannot be considered in assessing whether an individual has a disability. Thus, for example, even if a medication or device such as a hearing aid would remove the "substantial limitation" on a given major life activity, the individual is still considered disabled for purposes of the ADAAA. Likewise, conditions that are episodic or go into remission are still considered disabilities if they would cause a substantial limitation on a major life activity when active.

Third, the ADAAA rejects the Supreme Court's narrow interpretation of "substantially limits" and has tasked the EEOC with revising the definition of "substantially limits" to conform to the broadened Findings and Purposes sections of the ADAAA.

Fourth, an individual can be "regarded as" being disabled by the employer merely believing the employee is impaired, regardless of whether the impairment actually limits or is perceived to limit a major life activity. This, however, does not include impairments that are "transitory and minor". Further, employers are not required to reasonably accommodate an individual who is regarded as disabled.

Impact of FMLA Leave Implementation

The broadened scope of the ADA increases the likelihood that anyone taking FMLA leave for their own serious health condition may also have an ADA protected disability. As a result, it is important for employers to consider whether the employee is covered by the ADA (or state disability law) before separating an employee who has provided notice of his or her inability to return to work following exhaustion of the employee's maximum FMLA leave entitlement. Oftentimes, such employee notice includes a request for additional leave and/or a doctor's note with a return-to-work date beyond the FMLA leave expiration date. While there is no duty under the FMLA to grant additional leave, if the employee's medical condition meets the definition of an ADA disability, there may be a duty under the ADA to consider granting additional unpaid time off from work, as some courts have held that leave is a form of reasonable accommodation.

Unlike the FMLA, the ADA does not contain a specific time limit on the amount of leave an employee may take. The amount of leave that is a "reasonable accommodation" in any particular circumstance will depend on the facts of the situation and require an individualized assessment. In most instances, assuming the employee is a "qualified individual with a disability" and the leave is necessitated by the disability, the amount of additional unpaid leave that must be provided, if any, will be based on whether the employee's continued absence has caused or will cause undue hardship on the employer. The greater the hardship, the less additional leave will be reasonable.

Hardship can be established by demonstrating additional cost compared to available financial resources, disruption to the business, and the negative impact of the accommodation on the ability of other employees to perform their duties. Disruption to the business can include disruption caused by uncertainty of the employee's return and the need to fill the position on a permanent basis. In determining hardship, the employer may also consider the impact on its operations caused by the employee's recent period(s) of FMLA protected absence (i.e., up to 12 weeks in any given 12-month period.)

If additional leave creates undue hardship, the employer must engage in the interactive process to determine if there is an alternative accommodation that would be reasonable in the given circumstance. For example, is there a vacant position the employee can perform with or without reasonable accommodation and for which the employee is otherwise qualified? Can the work schedule be modified to reasonably accommodate the employee and allow a return to work? To the extent there is a reasonable accommodation other than leave that would not interfere with the employee's need to address his or her medical needs, the employer may choose the accommodation that would return the employee to work.

It is also important to remember that courts and the EEOC have rejected two relatively common employer leave practices as being per se violations of the ADA. First, inflexible polices that mandate termination of employment follow exhaustion of a maximum period of absence are held to violate the ADA because they are implemented without engaging in the required individual assessment. Such policies have traditionally stated that once an employee is continually absent for a set period of time, the employee is administratively terminated from employment. In October 2009, Sears agreed to pay $6.2 million to settle a lawsuit brought by the EEOC. The action challenged Sears' inflexible policy of terminating injured employees who had exhausted their workers' compensation leaves without Sears considering potential reasonable accommodations that would enable such employees to work or granting leave extensions until a return was possible.

Another common policy held to violate the ADA is where employers require that employees be "fully healed" or "100% healed" to return to work after leave. Courts have held this type of policy violates the ADA because it too is implemented without the required individual assessment of whether the individual is qualified and able to perform the essential functions of his or her job, with or without accommodation.

Lastly, when analyzing FMLA exhaustion issues, employers should consider state disability law requirements as well, in addition to ADA requirements.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.