By Eric B. Meyer
Recently, I gave a webinar about the interplay between the Family and Medical Leave Act and the Americans with Disabilities Act.
One of the takeaways there was that, when an employee’s 12 weeks of FMLA leave expire, you need to be thinking about ADA implications rather than processing a pink slip at 12 weeks and a day. This is because additional leave may be a reasonable accommodation.
The same issues can arise if you have a pregnant employee. That is, you need to consider the interplay between the Pregnancy Discrimination Act and the ADA.
Additional leave may be a reasonable accommodation
A recent case shows how the ADA may apply to pregnant employees.
Trevis Reed was a Special Education Teacher in Louisiana, until she was fired from her position. Ms. Reed was pregnant and used all of her allotted leave time from August 2011 from February 2012.
Ms. Reed was scheduled to return to work on Feb. 15, 2011, however her psychiatrist would not clear her to return until two weeks later, on Feb. 28, 2011. The school refused to grant the extra two weeks of leave, and fired Ms. Reed when she failed to return to work on Feb. 15.
Ms. Reed then sued for violation of the ADA.
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The school did not challenge that Ms. Reed was disabled. (Note: Pregnancy is not a disability. However, postpartum depression could be). Rather, the school argued that, when it fired Ms. Reed, she was not a qualified individual within the definition of the ADA. That is, she could not perform the essential functions of her job with or without a reasonable accommodation.
Additional leave request not “improper”
Even though the plaintiff’s counsel failed to address the school’s argument that Ms. Reed was not qualified, the Court, on its own examination, still denied the School’s motion for summary judgment. That is, it determined in this opinion (Reed v. Jefferson Parish School Board) that a reasonable jury could conclude that an additional two (2) weeks of leave was a reasonable accommodation for Ms. Reed:
The Court does not find on this record that Reed’s request for the additional leave was improper, or that it fell beyond the bounds of the general rule that a reasonable accommodation may include “providing additional unpaid leave for necessary treatment.” Nor does the Court find on the existing record that after February 28, 2011 Reed was inhibited from fulfilling the necessary requirements of the job.”
Takeaways for employers
Unfortunately for employers, there is no magic formula to determine how much additional leave, beyond that which an employee has already been allotted, is reasonable. Each case — and each leave scenario — stands on its own set of facts. That said, consider these takeways:
- The more leave you initially provide, the tougher it will be to argue that a brief period of subsequent leave is unreasonable.
- Denying two (2) weeks of additional leave to a new mom who is suffering from doctor-certified postpartum issues is cold as ice. That’s a great way to earn yourself a jury trial.
- Many of PDA/FMLA leaves of absence will involve ADA issues and, thus, foreshadow an interactive dialogue to discuss reasonable accommodations.
Don’t wait until leave is about to end to broach this subject. Plan ahead. Communicate with that employee early and often.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.