Since the passage of the ADAAA, I have received more and more questions from clients about whether an employee can be terminated at the end of FMLA time if they are still unable to return; or whether the FMLA basis could also be a disability under the ADA requiring more leave as an accommodation. No question that now, more often than not, when an employee takes leave under the FMLA for their own serious health condition and requires the full 3 months of leave, the ADA will be triggered.
Under the ADAAA and the interpreting regulations, the duration requirement for a disability was greatly lessened and now a condition lasting only 3 months can qualify. My response to my clients has been that in these situations, employers should take great care and review the facts before simply terminating the employee for exhausting the leave. I recommend that employers send out a letter prior to the expiration of FMLA, inquiring as to whether they are expected to return to work before the leave, and, if not, instructing them to contact the employer to discuss next steps. If the employee does contact the employer, inquiries should be made as to the employee’s status, expected return/release date and current restrictions. An ADA assessment can then be conducted to determine whether an accommodation of extended leave or offering another position may be in order. (Remember that an indefinite leave is not a reasonable accommodation under the ADA). If the employee fails to contact the employer or provide the information as requested, the employer can proceed with the termination. This advice and course of action was recently affirmed by a US Court of appeals.
In Owens v. Calhoun County School District, Fifth Circuit, October 8, 2013, the Fifth Circuit Court of Appeals affirmed a grant of summary judgment in favor of the defendant employer in an ADA action brought by a former employee. In this case, the plaintiff, Karen Darlene Mann Owens, was terminated for exhausting her FMLA and available time on February 9, 2010. Owens suffered from neck and back pain that led her to take leave under the FMLA starting on October 19, 2009. She ultimately underwent surgery on her neck and back, and her principal advised her that she could remain on leave until she received her final x-rays. On January 20, 2010, the principal asked Owens when she would return to work, and Owens responded that she had a doctor’s appointment on February 12, 2010. Owens also advised that she may be able to return to work on February 15, 2010 if her doctor released her. Her FMLA leave was to expire on February 1, 2010.
In late January, the School District sent Owens a letter advising that her FMLA leave would soon expire and requesting that Owens provide a return to work date so that her employment status could be determined. On February 4, 2010 the principal and Owens had another conversation during which the principal asked Owens when she could return to work. However, Owens never gave the principal a date for her return. Rather, she only stated that she had a doctor’s appointment on either February 12 or February 15 but did not know if she would be released at that time. Ultimately, the School District sent Owens a letter on February 9, 2010 terminating her for failing to return to work before FMLA leave had expired on February 1, 2010 and for failing to provide a date for her return. The lower court granted the School District’s Motion for Summary Judgment and dismissed the case. Owens appealed to the Fifth Circuit. For purposes of its analysis, the appeals court presumed Owens to be disabled and entitled to a reasonable accommodation under the ADA but concluded as a matter of law that Owens could not raise an issue of material fact that the School District’s reasons for terminating her were not truthful or in violation of the ADA. In reaching this conclusion, the Court looked to the fact that Owens admitted she did not return to work before her FMLA leave expired and that she failed to inform the School District of a date for when she could return to work. Owens never provided any doctor’s release and did not have one at the time of her termination.
The Court noted that the School District’s reasons for termination were also factually supported and could not be disputed to raise a genuine issue of material fact as to whether the School District’s reasons for terminating Owens were pretextual, i.e. untruthful. The documentation requesting that she contact them and provide information regarding her status and return were proper and Owens’ failure to complie with the request supported the termination.
This ruling in this case should give some reassurance to employers hesitant to terminate an employee once their FMLA leave has expired because of ADA accommodation concerns if the employer makes reasonable inquiries in advance of the termination. In the Owens case, the Court found that the employer’s reasons for termination were legitimate and not a violation of the ADA because the employer did a commendable job of documenting its communication with the employee towards the end of her FMLA leave and her failure to provide a return to work date. Because the employee did not provide a return to work date prior to the expiration of her leave, the termination was upheld.
With this case in mind, employers should be reminded to document their employee FMLA leaves, communicate with employees before the expiration of the leave and document the reasons for termination. These steps not only are the best way to deal with employees in these situations but can also help limit exposure to discrimination liability, and can certainly help employers defend such cases should they arise in litigation. As with any policy it is also important that employers be consistent in their treatment of leaves and enforcement of any violations.
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