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Multiple FMLA leaves & ADA

A former employee was granted an FMLA during June 2008 and an additional unpaid leave in September 2008 for a knee replacement.

During Feb 2009 this employee requested limited duty work. The request was denied due to economic conditions and lack of customer requirements. The next day the employee requests a second FMLA, and does not attend work.

Then after progressing through the steps in our attendance policy this person was terminated in March 09.

Now she has filed an ADA claim for believing she has been discriminated against under the ADA.

Any Advice?

This employee may well have a discrimination case under the ADA, the federal Americans with Disabilities Act.

We are assuming that she has a permanent disability under the current EEOC definition. That is probable, since the EEOC expanded the definition of disability in 2009 to include almost any permanent physical impairment.

The ADA requires that employers make reasonable accommodations for an employee with a disability, who can perform the major job functions of a position with that accommodation.

Three very common accommodations are additional unpaid time off, a reduced work schedule and modification of duties. The key difference from FMLA is that the employer need not make an accommodation under ADA if it is an undue hardship. Normally, *undue hardship* is defined by the amount of money that the employer would have to spend to grant the accommodation — the larger the employer, the higher the price.

In this case, it sounds like your business decreased, and you decided to let an employee go. You choose to let this employee go, because she was on light duty. That may very well be illegal discrimination against an employee with a disability.

On the other hand, suppose the accommodation would have required you to hire another employee, to fulfill part of this workers responsibilities. That would be an undue hardship, and you would not be required to do so.

At this point, because a claim has been filed, your best bet is to cooperate with the EEOC in the investigation and follow their recommendations — which may include reinstating this employee. If you feel that the EEOC decision is 100% wrong, you should hire an attorney, because you are looking at an expensive lawsuit.

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This entry was posted on Wednesday, May 13th, 2009 at 7:16 am and is filed under
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2 Responses to “Multiple FMLA leaves & ADA”

  1. Clifford Lodge sunjoy Says:

    thanks for your informative website.

  2. Caitlin Says:

    Hi Clifford! You are very welcome! We update the site 6 days per week, so check back often! HTH, and thanks for reading the blogs!~ Caitlin

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