One of the most vexing areas in employment is the interaction of the Americans with Disabilities Act and the Family and Medical Leave Act for individuals on a leave of absence because of a disability. If an employee has a disability and needs to take a leave of absence, the employer may provide qualified employees with twelve weeks of leave under the FMLA. But what happens when the FMLA period expires and the employee requests additional leave? 

The recent case of Bernhard v. Brown & Brown of Lehigh Valley Inc., No. 5:08-cv-4335 (E.D.Pa. June 14, 2010) shows how difficult this can be. In Bernhard, the plaintiff had cancer and was out on an FMLA leave of absence. The employee had also been on an earlier leave of absence (non-FMLA) and had taken intermittent leave. The employee did not return to work at the expiration of his FMLA leave and informed his employer that he would be out of work for at least three more months. The employer construed the employee’s request for additional leave as a request for indefinite leave. Thus, the employer terminated the employee’s employment because there was no end in sight as to the leave. 

 

Subsequently, the employee sued and the employer moved to have the case dismissed via a summary judgment motion. The court denied the motion sending the case to trial   The court believed it was questionable whether the leave was indefinite, noting that the employee had said he could return in approximately three months. The court emphasized that the employee presented considerable evidence that the employer did not engage in the interactive process with the employee or evaluate whether the additional leave of absence would present an undue hardship for the employer.

 

The lesson to be drawn from this case is that a leave analysis for an employee with a disability does not end upon completion of the employee’s FMLA leave. If an employee has completed his or her FMLA leave but requests to continue the leave of absence for a period of time, employers should engage in the interactive process with the employee to assess several considerations; i.e. whether the requested leave will allow the employee to complete the necessary treatment so that when the employee is scheduled to return to work the employee will be able to perform the essential functions of the job, whether the continued leave would constitute a reasonable accommodation, and whether the continued leave would present an undue hardship upon the employer. Failing to do so or simply terminating an employee’s employment who does not return to work after the expiration of the employee’s FMLA leave could lead to an unintended result.

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Photo of Eric B. Sigda Eric B. Sigda

Eric B. Sigda is a shareholder in Greenberg Traurig’s Labor & Employment Practice. He represents management in litigating federal and state employment matters including claims involving allegations of discrimination, harassment, whistleblowing, Sarbanes-Oxley retaliation, breach of contract, wage and hour class actions, misappropriation of…

Eric B. Sigda is a shareholder in Greenberg Traurig’s Labor & Employment Practice. He represents management in litigating federal and state employment matters including claims involving allegations of discrimination, harassment, whistleblowing, Sarbanes-Oxley retaliation, breach of contract, wage and hour class actions, misappropriation of trade secrets and violations of restrictive covenants. Eric has handled matters in federal and state courts and in arbitration. He has also represented clients before various agencies including the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor, and the New York State Division of Human Rights. He also regularly represents management in disputes with labor unions.

In addition, Eric counsels employers of all sizes on labor and employment matters such as family and medical leave, disability questions, employee handbooks, employee discharge and discipline, diversity and harassment training and contingent workforce issues.

He has wide-ranging experience reviewing, negotiating and preparing employment agreements.