So, your employee has requested intermittent FMLA leave with an altered work schedule. Sounds fairly easy. But, what are the hidden issues that may not be mentioned during this conversation? FMLA and ADA? Why should you care?
Surely, this question ranks up there with life’s unanswered questions. You know, questions like: When does it stop being partly cloudy and start becoming partly sunny? Or why is sandwich meat round when bread is square?
This FMLA/ADA conundrum apparently means a lot to Fredrick Capps. Fred was a mixing technician for Mondelez International, the company which brings us Oreo cookies and other yummy treats. Fred had a degenerative bone disease that required intermittent leave for flare-ups that affected his ability to walk, sit and stand. He was certified for intermittent leave, but the Oreo cookie company became skeptical after it learned that Fred had been arrested for driving under the influence on one of the days he called in sick. A logical concern, of course.
The company fired Fred, and he sued. He filed a slew of claims, including an allegation that the employer violated the ADA when it did not consider Fred’s leave request as a plea for a reasonable accommodation. The trial court quickly rejected Fred’s ADA claim, finding that a request for FMLA leave is not alternatively a request for a reasonable accommodation under the ADA. Capps v. Mondelez Global
HR professionals across the country must be breathing a sigh of relief.
But are they?
As I noted in Bloomberg BNA’s Daily Labor Report earlier this week (pdf accessed here), employee requests for medical leave may or may not double as requests for an ADA reasonable accommodation. But it really is a distinction without a difference, and employers should not get caught up in the legal mumbo jumbo. In all my time representing employers, an HR Director or in-house counsel has never asked me to help them decide whether a leave request should double as an accommodation request. In the real world, it doesn’t matter!
From a practical standpoint, when an employee requests leave from the job, the employer should use it as an opportunity to learn the basics about the employee’s medical condition and how it affects his/her ability to do the job. Armed with this information, we can then engage the employee in a more informed dialogue about temporary adjustments we might be able to make to keep the employee on the job. Conversely, if we determine adjustments can’t be made, a leave of absence may very well be the only option.
Let the attorneys argue over whether a request for FMLA leave doubles as a reasonable accommodation. In the meantime, we need not be afraid of the interactive process. In working diligently at creative, workable solutions to help keep employees on the job, employers will maintain the healthiest and most productive workplaces.
Credits: PDF of article reproduced (by FMLA Insights) with permission from Daily Labor Report, 137 DLR C-1, (July 18, 2016). Copyright 2016 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>”
Until Next Time, Be Audit-Secure!