We think you should know about a new EEOC press release about a company’s alleged refusal to accommodate employees returning from FMLA. Even though the events occurred in Michigan, the EEOC oversees federal law across the country.
As a result, this situation serves as a warning to all employers.
On September 13, 2024, the EEOC filed a lawsuit against PACE Southeast Michigan, alleging that multiple Detroit-area locations violated federal law by failing to provide reasonable accommodations to employees with disabilities who were attempting to return to work following leave under the Family Medical Leave Act (FMLA). PACE had a written policy that any employee who’s unable to return to work at the end of FMLA leave is considered to be a voluntary resignation. This resulted, of course, in termination.
The lawsuit cites two employees who requested an additional 30 days of unpaid leave after their FMLA leave and even provided medical documentation supporting their requests, but PACE refused to consider the additional leave and, instead, terminated them.
The EEOC filed suit, alleging that PACE’s policy violated the Americans with Disabilities Act (ADA). It claimed:
“Employers must treat requests from disabled employees for unpaid leave as requests for a reasonable accommodation. This employer easily could have granted these brief extensions of leave with no undue burden on the company. By refusing to do so, it violated the ADA.”
While we don’t yet know the outcome of the lawsuit, it’s clear the EEOC is taking a firm position here. It believes the employees are protected under the ADA. As a consequence, it contends, PACE should have engaged in ADA’s required interactive process and accommodated them because their requests for minimal additional unpaid leave wasn’t unduly burdensome.
Given the press release blasted across the country, we want you to be mindful of the ADA when dealing with employees asking for additional time off after their FMLA or other medical leave has expired. Note that New York’s Paid Sick Leave is another job-protected leave that could implicate ADA protections if your employee asks for a reasonable amount of additional unpaid time off.
Disabilities Under The ADA
Under the ADA, a person with a disability is someone who:
- Has a physical or mental impairment that substantially limits one or more major life activities,
- Has a history or record of such an impairment (such as cancer that is in remission, or
- Is perceived by others as having such impairment (such as scars from a severe burn).
Examples of disabilities include diabetes, blindness, epilepsy, major depressive disorder, mobility disabilities such as those requiring the use of a wheelchair or cane, traumatic brain injury, and so much more.
The definition of disability under the ADA is broad and can encompass numerous health conditions. Because of this, it’s important to ensure that you err on the side of caution when dealing with the ADA and its requirement that employers accommodate employees.
The Relationship Between The FMLA and ADA
After an employee takes leave under FMLA, she might need further leave because her medical condition remains. This could be the case for numerous situations, with one common example being that she’s been diagnosed with cancer and remains under active treatment that makes it difficult, if not impossible, for her to return to work after her 26-week FMLA period expired. Another example that could implicate the interactive process under the ADA is continuing mental health conditions, like anxiety and depression. Both physical illnesses and mental conditions can implicate legal protections.
So this is when the ADA comes in. If the employee’s illness, disorder, or impairment is classified as a disability under the ADA, then she may be entitled to a reasonable accommodation that may include extended leave.
Note: a leave of absence can be a reasonable accommodation under the ADA.
If an employer ignores this, it can be liable for failure to accommodate the individual’s disability if:
- The employer was subject to the ADA;
- The employee was disabled;
- The employee was otherwise qualified to perform the essential functions of the job; and
- The employer had notice of the disability and failed to provide reasonable accommodations.
New York Implications
Again, the Michigan lawsuit is pending, so a court hasn’t quite yet given us the ultimate answer there. But the EEOC has broad discretion for presiding over charges filed by employees across the country.
So heeding this warning is wise.
Moreover, some federal courts in New York State have in fact ruled on similar issues, with most relating to extended leaves due to cancer.
For instance, in 2023, the District Court for the Eastern District of New York (largely located in Long Island) dealt with this issue in Shider v. Allied Universal Security Co., where the plaintiff sued under the ADA for failure to accommodate. The plaintiff had been diagnosed with cancer and took medical leave until his benefits expired. His HR Director then told him (1) he could either quit and be re-hired, (2) take a 30-day leave, or (3) take temporary disability. He chose to take temporary disability leave.
Two months later, however, he received a termination notice. Attempting to contact the company multiple times over a four-month period regarding his return to work, he was consistently ghosted. After six months with no response, he filed an EEOC charge, alleging disability discrimination. When the case eventually came before the court, the employer moved to dismiss the claim, and the court denied the motion, finding that the former employee plausibly alleged that Allied was responsible for the breakdown in the ADA’s required interactive accommodation process.
How? Allied simply failed to respond its employee’s multiple attempts to contact it regarding his return to work with an accommodation.
This New York-centric case serves as a warning that if your employees ask to take an extended leave after the expiration of FMLA or PSL (or perhaps even Paid Family Leave, depending on the reasons for it), it’s critical that you maintain contact. Don’t ghost them. It’s a chore, but consistently interact when requested. Otherwise, you might run afoul of the ADA.
Steps to Protect Your Business
While there’s nothing in New York law that specifically requires you to comply with every single employee request for extended leave following FMLA or other types of medical leave, it’s important to note that in some circumstances, the ADA may apply here. You could be found liable for failure to reasonably accommodate if you refuse to extend the employee’s leave.
So, bottom line, get advice from your legal counsel as soon as this becomes an issue. Err on the side of caution. Don’t try to go it alone, and certainly don’t ignore the requests – this is true even if the employee was on a PIP or otherwise isn’t a star. Don’t ignore her.
If the ADA protects your employee – and if you could have provided a reasonable accommodation (i.e., one that isn’t unduly burdensome to the business) – then you’re walking yourself into a claim by being obstinate.
Is this a challenge? Yes.
Is the law overly employee-friendly? Heck, yes.
That’s why we want you armed with enough information to spot these risks and know when to get guidance for your particular situation.
If you need help on this or other employment or personnel issues, simply reach out.
You can connect with us on social, by calling us at 716.839.9700, or by emailing info@coppolalegal.com. We’re here to help.
