FMLA and ADA Additional Leave Requests Could Be Costly to Employers Unless Handled Appropriately

Derrick Maginness Business & Corporate Law, Litigation

Employers often fall into the trap of believing that employees who have exhausted their twelve weeks of leave under the Family Medical Leave Act (“FMLA”)[1] are not entitled to additional leave, and may be terminated if they fail to return to work immediately.  However, failing to consider the Americans With Disabilities Act and the ADA Amendments Act of 2008 (collectively the “ADA”) could prove costly to employers who deny requests for additional leave without considering the interplay between the FMLA and the ADA.

Under the ADA, an employer has the obligation to reasonably accommodate a “disabled” employee, and nearly every federal circuit court has found leave to be a reasonable accommodation under the ADA.  The 2008 Amendments expanded considerably the number of people covered by the ADA.  Disability is defined as a physical or mental impairment that substantially limits one or more major life activities; however, the disability need not be permanent to qualify.  Accordingly, employers should be cautious when denying additional leave beyond FMLA to employees who need additional leave due to their health condition.  When an employee runs out of FMLA leave, the employee can seek additional leave under the ADA; and the employer, must make a “reasonable accommodation” which often results in extended leave.

The ADA is ambiguous as to how much leave time is allowed, and Plaintiff’s lawyers are seizing on the opportunity to file more ADA claims because they are more difficult to get dismissed, and settlement values have increased significantly.  In 2011, Verizon Communications entered into a consent decree of $20 million dollars for disciplining or terminating disabled employees without considering additional time off as an ADA accommodation.

The only statutory limitation on an employer’s obligation to provide “reasonable accommodation” is that no such change or modification is required if it would cause “undue hardship” to the employer.[2]  A recent case, Henry v. United Bank[3], serves as a guide for what employersshould do when faced with an extended leave request.  United Bank was faced with an extended leave request from a commercial credit analyst, Kathy Henry.  The note from her physician stated that she would need to “remain out of work until further notice”.  United Bank informed Henry that it could not hold her position open indefinitely, and terminated her employment. Ms. Henry filed a lawsuit and attempted to use the ADA’s reasonable accommodation requirement against United Bank.  The court dismissed Ms. Henry’s claim. Aside from Ms. Henry’s request for an indefinite leave, United Bank documented how Ms. Henry’s continued absence created an “undue hardship” on its business.

It is critical that an employer, upon receiving a request for extended leave review and document how such a request impacts the business and operations, and whether it results in an undue hardship to the employer.  In this case, United Bank documented that Ms. Henry’s absence was an “undue hardship” under the ADA for the following reasons:

 The Department was strained from short staffing;

  1. Two other credit analysts and Ms. Henry’s supervisor had been carrying her workload;
  2. No other employee in the bank was available to perform Henry’s work;
  3. Hiring a temporary employee was not a wise business practice due to the confidential nature of the client information to which credit analysts have access and the particularized training in performing the credit analyst job;
  4.  The analysts loan review responsibilities were expected to increase;

 The complete documentation and ability to present the foregoing reasons to the court resulted in a showing of “undue hardship to United Bank.

 At a minimum, the foregoing analysis when denying extended leave will soften the gung-ho investigators at the EEOC, and have a Plaintiff’s attorney think twice before filing a suit against you.


[1] The FMLA only applies to employers that meet certain criteria. A covered employer is a: Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer; Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or Public or private elementary or secondary school, regardless of the number of employees it employs.

[2] EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

[3] Henry v. United Bank, 686 F.3d 50 (1st Cir. 2012)

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Derrick Maginness