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When the Clock Strikes Twelve on FMLA Leave

December 20, 2017

Employers often assume that the Family and Medical Leave Act (FMLA) allows them to terminate employees who fail to return to work after any leave that has a specified end date, or who have exhausted their leave.  Depending on the facts, this assumption might be correct.  However, employers should pause—and take into account a few considerations—before drafting a termination letter as the employees might be entitled to additional leave time under the FMLA, or possibly, the Americans with Disabilities Act (ADA).  As discussed below, recent cases decided under the FMLA and the ADA may impact this inquiry.   

The Effect of the “Reasonable Notice” Rule on an Employee’s Failure to Return to Work at the Conclusion of FMLA Leave

With respect to an eligible employee who has taken FMLA leave with a specified end date, federal regulations allow employers to require the employee to provide “reasonable notice” if it becomes necessary for the employee to take more FMLA leave than originally anticipated.[1]  On its face, the “reasonable notice” rule appears to benefit employers.  However, as a recent Virginia federal district court decision reveals, interpreting the rule too strictly when considering whether to terminate an employee who does not return to work might come back to haunt the employer.

In Perry v. Isle of Wight County,[2] Lisa Perry, a former Economic Development Specialist, injured her shoulder and was required to miss a significant amount of work.  As a result, Perry was granted medical leave under the FMLA.  On the last day of her FMLA leave, she visited her doctor, who concluded that she needed a brief extension of her leave.  Perry did not inform her employer of her doctor’s recommendation or her need for additional leave, and simply failed to show up for work on her return date the following day.  Pursuant to the employer’s policy providing that employees are considered to have voluntarily resigned if they do not return to work following the conclusion of FMLA leave, Perry’s employer terminated her employment that day.  When Perry appeared for work the next week, she was told that her employment had been terminated.

Perry filed suit, alleging that her employer violated the FMLA when it terminated her, arguing, in part, that the employer’s manual contained a reasonable notice policy stating that employees must provide the employer with “reasonable advance notice (i.e., within [four] 4 business days).”  Perry contended that she had four days within her return to work date to provide notice of her need for additional leave, and, therefore, the employer should not have terminated her for failing to return as scheduled.  The court held a bench trial.  Despite the fact that the employer terminated Perry’s employment the day after her leave expired, the court found that it violated the FMLA because it terminated Perry’s employment before the end of the four-day “reasonable notice” period set forth in the employer’s policy manual.  The court awarded Perry liquidated damages and front pay totaling nearly $750,000.

To avoid the result in Perry, employers should review their FMLA forms and policies to be sure that they clearly inform employees of their duty to provide reasonable notice of any changed circumstances, especially with respect to those arising at the end of a scheduled leave.  Employers should also consider defining “reasonable notice” to mean two business days, rather than the four business days afforded by the employer in Perry.  Further, employers could request same-day notice when they are aware that an employee has a doctor’s appointment scheduled for the last scheduled day of FMLA leave.  Nevertheless, employers should bear in mind that the law may afford an employee a grace period in which to provide such notice.

Does the ADA Require an Employer to Extend a Leave Taken Under FMLA?

As previously discussed, the interplay between the FMLA and the ADA can become complicated when an employee’s serious health condition also constitutes a disability under the ADA.  In the event an employee has exhausted his or her 12 weeks of FMLA leave, but requires additional leave, an employer must determine whether to grant additional leave—and how much to allow—as a reasonable accommodation under the ADA.

For years, the Equal Employment Opportunity Commission (EEOC) has made clear its position that leave is a reasonable accommodation under the ADA and that automatic termination of employment upon the expiration of FMLA leave violates the ADA.  In fact, earlier this year, UPS paid $2 million to settle a class action lawsuit filed by the EEOC, which arose from UPS’s allegedly inflexible policy of terminating employees—rather than further extending their leave—when they were unable to return to work after one year.  Also in furtherance of its position, the EEOC recently filed a lawsuit against an employer with a rigid maximum leave policy whereby employees were not granted a leave of absence beyond the required 12 weeks of FMLA leave.       

Federal courts have typically sided with the EEOC. In a rather surprising development, however, in Severson v. Hartline Woodcraft, Inc.,[3] the Seventh Circuit Court of Appeals rejected the notion that offering a finite, multi-month ADA leave to begin at the expiration of FMLA leave is a reasonable accommodation as a matter of law.  The plaintiff in that case, Raymond Severson, whose work for a fabricator of retail display fixtures was physically demanding, took FMLA leave because of a back condition.  When Severson requested two additional months of leave for surgery and was unable to return to work at the end of his FMLA leave, the employer denied his request, terminated his employment, and stated he could reapply when he was physically able to return for work.  Ultimately, the Seventh Circuit affirmed the entry of summary judgment in the employer’s favor, finding that the FMLA, not the ADA, governed long-term medical leave, and concluding “the inability to work for a multi-month period removes the person from the class protected by the ADA.”[4] 

While some may view Severson as a victory for employers, no one—especially employers outside the Seventh Circuit—should celebrate quite yet.  The Fourth Circuit, along with most other appellate courts around the country, has held that a leave of absence may be a reasonable accommodation under the ADA, even if immediately follows an FMLA leave.  Although there may not always be a clear answer as to the ADA’s requirements regarding extending a leave initially taken under the FMLA, employers should carefully handle requests for extended leave to avoid a violation of the ADA. 

Additional takeaways for employers:

  • Review your policies and train your managers/supervisors. Ensure that you do not have a policy stating or suggesting that an employee who exhausts his or her FMLA leave will immediately be terminated, and that managers/supervisors understand that the company will always consider a reasonable accommodation for an employee’s ADA-qualifying disability.
  • Check your return to work letters. Eliminate language that informs employees they must “return to work without restrictions.”
  • Seek information about the purpose of the requested additional leave. Employers seeking documentation of a disability under the ADA may require an employee to provide documentation that is sufficient to substantiate the existence of the employee’s ADA-qualifying disability and need for the reasonable accommodation requested.

[1] 29 C.F.R. § 825.311(c).
[2] No. 2:15-cv-204 (E.D. Va. Aug. 10, 2017), appeal docketed, No. 17-2054 (4th Cir. Sept. 11, 2017).
[3] 872 F.3d 476 (7th Cir. 2017).
[4] Id. at 481 (citation and alteration omitted).

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