Unfortunately, many employees suffer from medical conditions and disabilities during employment. Such ailments include cancer, disabling back and neck injuries and mental disorders. Companies often allow employees to take an initial leave of absence consistent with their obligations under the Family Medial Leave Act (“FMLA”) and then terminate the employee’s employment if he or she cannot return to work. Or, a company might allow an employee to extend a leave of absence for a set period of time, for example, for one year and then terminate the employee’s employment pursuant to a “no fault” one year policy. According to the Equal Employment Opportunity Commission, both scenarios can violate the Americans with Disabilities Act (“ADA”) and potentially the FMLA.
There are two issues with the above scenario. First, an employer may not retaliate against an employee for taking FMLA leave. Where an employer has 50 or more employees, employees are entitled to FMLA time-off. The leave of absence can extend to 12 weeks after one year of service and may be with or without pay. If an employer terminates an employee, without doing any more, immediately upon expiration of the 12 week period, there may be an inference that the termination decision actually resulted because the employee exercised his or her rights under the FMLA. This is commonly referred to as a FMLA retaliation claim.
The second issue arises out of requirements under the ADA. Most courts now recognize that a leave of absence is a reasonable accommodation. Therefore, when an employee requests a leave of absence or an extended leave of absence in relation to a disability such as cancer or severe back injuries, the employee is actually seeking a reasonable accommodation. This triggers an employer’s obligation to engage in the interactive process to see if an accommodation can be made or if the proposed accommodation is an unreasonable financial burden.
If the proposed accommodation is an unreasonable financial burden, the employer must look to see if there is a reasonable alternative accommodation. If an employee is on an extended leave of absence while working with a large company, it would be difficult for the company to successfully argue that keeping the employee on extended unpaid leave is an unreasonable financial burden. Certain cancer treatments, for example, can last for more than a year. If the employee is not being paid during this time (other than taking ERISA protected benefits) the employer likely cannot justify terminating the employee’s employment due to some purported unreasonable cost or burden.
Some employers, in an apparent effort to circumvent this issue, have created “no fault” policies or “100% healed policies.” The typical “no fault” policy requires that an employee return to work within one year of taking a leave of absence. If the employee fails to return to work, the policy essentially states that the employee loses his or her employment rights. If the employee does not return to work, the employer then terminates his or her employment, not because of his or her disability, but because of the policy requirement. This procedure, however, runs contrary to the ADA requirements. An employer must engage in the interactive process and determine whether or not there is a reasonable accommodation or reasonable alternative accommodation. This typically requires some form of individualized assessment of the employee. The Equal Employment Opportunity Commission typically considers terminations pursuant to a “no fault” or “100% healed policy” a per se violation of the ADA.
Thus, if you are on an extended leave of absence and your employer is threatening termination, you should consult with experienced counsel such as Hennessy Law to protect your rights.