ADA and FMLA
Dan McCarthy
9 Posts
We currently have an employee who is "mentally challenged" and has requested time off. We have accomodated her request, and she is currently on leave. I believe this is a crossover issue with ADA as well. We hired her through an agency which specializes in this type of placement. If/when she exhausts the FMLA time frame, are we obligated to keep her position open? Can we provide a "comparable" position, or decide her position is no longer necessary? Any help people can offer would be greatly appreciated.
Comments
Under the ADA, an employer has to grant a reasonable accomodation. If her medical status after she has exhausted all leave is indefinate leave needed, generally, granting more leave would not be required under the ADA (most cases I have looked at say that it is not a reasonable accomodation to grant leave indefinately).
If, however, she exhausts her FMLA leave, and her doctor says she will be able to return by a date certain, (which is a few days or weeks after her FMLA leave expires), the company will have to determine if it is reasonable to grant the additional leave. In a recent case I read, the employee took four months leave under the company's policy. At the end of the four months, her doctor said she could return to full duty in 2 weeks. The employer filled her position because she had exhausted leave. The court said that the employee could have a claim under the ADA, because providing two weeks additional leave was probably a reasonable accomodation and not an undue hardship.
As you can tell, this is a very fact specific determination. Before making any employment decision, the company will need to get updated medical information about the employee's condition. And you might want to run the specific facts by legal counsel, especially if the company decides to replace or terminate the employee.
Good Luck!!
Theresa Gegen
Attorney Editor
Texas Employment Law Letter
Andrews & Kurth, LLP
Dallas, Texas