Happy 2014! Can you believe it is another new year? Time flies!employee termination

We will be finishing up our Employment Law IQ series in the next few weeks. Today’s question involves the sticky overlap of the ADA and FMLA, two laws that can be difficult even for seasoned HR professionals to navigate.

Scenario. Lucy Lawless works as an associate attorney at Dewey, Sue & Howe, the biggest law firm in Southwest Florida. Lawless, a lifetime smoker, was recently diagnosed with lung cancer. Dewey, Sue & Howe, which calculates FMLA leave on a calendar basis, grants Lawless 12 weeks of leave under the FMLA. Lawless is unable to return to work after 12 weeks, so Dewey, Sue & Howe grants Lawless an additional six months leave. At the end of six months, Dewey, Sue & Howe granted Lawless an additional period of leave, up to the anniversary date of her first request for leave. On the anniversary date, Lawless requests additional leave, but does not provide Dewey, Sue & Howe with any doctor’s note or certification to verify her request. Dewey, Sue & Howe terminates her.

Which of the following statements is correct?

A.  Dewey, Sue & Howe violated the ADA by failing to grant Lawless additional leave.

B.  Dewey, Sue & Howe violated the FMLA by failing to grant Lawless additional leave.

C.  Dewey, Sue & Howe violated both the ADA and FMLA by failing to grant Lawless additional leave.

D.  None of the above.

The correct answer is “D.” This is a dicey situation because of the interaction of the ADA and FMLA. The fact Lawless did not provide a doctor’s note or certification likely saved the day for Dewey. The ADA does not require indefinite leave as a reasonable accommodation, so it is unlikely Dewey’s termination of Lawless after a year violated the ADA. Because a year passed, however, if Lawless submitted proper medical certification, she may have been entitled to an additional 12 week period of leave under the FMLA. Since she did not provide a certification, Dewey’s termination of Lawless did not violate the FMLA. Even if Dewey survived an ADA discrimination claim and an FMLA interference claim, however, Lawless could attempt to bring a retaliation claim under either law.

HR Takeaway:  If you are granting a leave to an employee as an accommodation, your best defense to a potential ADA claim is to have an open dialogue—i.e. the interactive process—with the employee about a return date, and prepare to be flexible. What is reasonable will depend on the nature of your business and how the employee’s position fits into your organization. You cannot make this determination without talking to the employee, gathering medical information, and making an informed decision about what works best for your company. Then, when the employee asks for “one more extension” to his or her leave of absence, you will be in a strong position to deny the request.