The scenario is all too common: An employee takes and exhausts 12 weeks of FMLA leave and still cannot return to work. At this point, the employer is left with a dilemma — does it terminate employment because the employee cannot immediately return to work, or does it consider approving more leave than the 12 weeks provided for under the Family and Medical Leave Act? This series of events is a regular trap for employers and, often enough, an employer gets ensnared in the trap without first analyzing its obligations under the Americans with Disabilities Act.
Let me share an example of an employer who got this situation right, and its approach is an excellent example for other employers to follow.
Kathy Henry worked for United Bank as a commercial credit analyst, which required her to ensure the credit-worthiness of borrowers and make recommendations on loans issued by the Bank. In January 2008, she suffered from spinal cord compression, causing severe pain in her back and neck. The pain was severe enough that, on July 1 of the same year, she sought a leave of absence and was placed on bed rest. In late September, as her 12 weeks of FMLA leave were about to expire, Henry provided a note from her physician that stated that she would need to “remain out of work until further notice.”
After reviewing the note, the Bank informed Henry 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. Henry v. United Bank (pdf)
Insights for Employers
The court dismissed Henry’s claims in their entirety. The decision itself was not surprising, given that Henry essentially requested an indefinite leave of absence — one that did not identify when she likely would be able to perform the essential functions of her job.
However, here’s the real value of this case: What I found particularly noteworthy about the employer’s approach in this situation is that it documented how Henry’s continued absence created an “undue hardship” on its business. This is a critical step for employers when analyzing their obligations under the ADA. The Bank was ahead of the curve, identifying early on — indeed, even as Henry’s FMLA leave was wrapping up — how Henry’s extended absence (beyond FMLA) was impacting its business.
Employers often miss this critical step. As I have explained in prior posts and in a webinar I held on this topic last year, when an employee requests additional leave after FMLA leave has expired, it is critical that the employer review and document how the employee’s request for leave impacts their business and operations and whether continued leave poses an undue hardship. Employers tend to invite EEOC scrutiny when they give undue hardship no thought.
Here, the Bank documented that Henry’s continued absence posed the following problems, all of which could be used to support “undue hardship” under the ADA:
- Two other credit analysts and Henry’s supervisor had taken on extra work that resulted from Henry’s absence, which in turned strained the department;
- No other employee in the bank was available to temporarily fill Henry’s analyst position, causing an overload on the department;
- Hiring a temporary employee was not an advisable business practice, due to the confidential nature of the client information to which the credit analysts have access and the particularized training involved in preparing an employee to competently perform the job;
- Analysts’ loan review responsibilities were expected to increase because the poor state of the economy had created a need for increased financial documentation when scrutinizing credit-worthiness, thereby emphasizing the need for a regular, full-time analyst to handle this increased load; and
- The Bank was expecting an increase in new loans, creating further stress on a short-handed staff.
Henry’s continued absence created quite a burden on the Bank, and because the Bank actually reviewed and documented this reality, it was in a far better position to make personnel decisions and defend against an employment discrimination lawsuit. As I have outlined before, employers should consider a host of factors when analyzing whether the requested leave of absence poses an undue burden, such as:
- Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
- Lower quality and less accountability for quality
- Lost sales
- Less responsive customer service and increased customer dissatisfaction
- Deferred projects
- Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees
- Increased stress on overburdened co-workers
- Lower morale
If employers considered all of the above, we’d quickly put the EEOC out of business when it comes to ADA reasonable accommodation claims. In the meantime, follow the Bank’s lead: 1) carefully administer FMLA leave, 2) communicate regularly with the employee while he or she is on FMLA leave, and if additional leave beyond FMLA is requested, 3) individually assess the individual’s return to work with or without a reasonable accommodation consistent with the mandates of the ADA, and 4) if you intend to deny additional leave, be prepared to articulate how the continued absence significantly impacts your business operations.
In the end, don’t be blind to your end goal, which is to return the employee to work. Right? If you keep your mind on that goal, it’s amazing what a little patience and creativity can do.