FMLA leave didn't fulfill ADA requirements when employee needed medical leave for disability
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Friday, April 1, 2016

FMLA leave didn't fulfill ADA requirements when employee needed medical leave for disability

By Lorene D. Park, J.D. Denying a nursing facility’s post-trial motion for judgment as a matter of law on a nursing assistant’s ADA claim, a federal district court in Florida rejected the employer’s apparent belief that granting 12 weeks of FMLA leave ended any need for a further accommodation under the ADA. It also concluded that, given the frequent turnover with respect to the many nursing assistant positions, the employer could easily have accommodated her request to extend her leave for an additional three months to heal from shoulder surgery. The court also denied a motion for a new trial but on the condition that the employee accept a reduced award for lost pay (Walker v. NF Chipola, LLC, dba Nursing Pavilion at Chipola Retirement Center, March 28, 2016, Hinkle, R.). By all accounts, the employee was an excellent certified nursing assistant (CNA) in every respect—except for her injured shoulder and request for six months off to recover. Her injury, which resulted from lifting and moving patients, was a disability under the ADA, and she was granted 12 weeks of FMLA leave. However, at the end of that FMLA period, the nursing facility gave her the choice of resigning or being terminated. She resigned to be eligible for rehire. Employee requested extra leave as accommodation. The precise communications between the employee and the facility were disputed but, viewing the evidence in her favor, she told the employer she needed surgery and would be out for six months. She delivered doctor’s notes confirming her need to be out and eventually clearing her for work six months later. In the court’s view, the employer would have had to be “exceedingly dense” not to understand she was asking for an accommodation consisting of unpaid leave through her return date. No burden at all. Moreover, under the circumstances, allowing an extra three months of leave without pay would have imposed “no burden at all” on employer, which employed many CNAs and had frequent turnover for the low-paying job. The court explained that all the employer would have had to do was either leave her name on the roster while providing no pay or benefits, or drop her from the roster but recognize she would come back when she could. However, the employer’s policy was to not extend leave beyond the 12-week FMLA period. While the employee was assured that she would be rehired, she was not. The facility denied that there were openings for her shift, but she made it clear she would accept any shift. Also, the jury was not required to accept the employer’s bald assertion, especially where it failed to present employment records that should have shown precisely how many CNA openings it had and when they were filled. The most reasonable view was the one accepted by the jury—that the employer had openings within the scope of the employee’s application that she would have accepted. “Intersection” of ADA and FMLA. It appeared to the court that the employer believed that because it provided the maximum required leave under the FMLA, it had no obligation to further accommodate the employee. To the contrary, the court explained, nothing in the ADA suggests that the reasonable accommodation requirement is somehow preempted by the FMLA. Instead, the statutes impose separate requirements and employers must comply with both. As an example, the court pointed to the EEOC’s enforcement guidance of an employee who needs 13 weeks of leave as a reasonable accommodation for a disability. The employee is entitled to 12 weeks under the FMLA and the additional week under the ADA. Nothing in the ADA or this guidance suggested that one week was an outer limit on what might be required, noted the court. In addition, other courts have held that employers may not be required to provide indefinite leave, but leave is sometimes a reasonable accommodation depending on the facts. Here, the employee needed only a single period of leave to accommodate a disability that would be completely cured through surgery. The physician accurately predicted she would be out for six months and the employer could easily have accommodated her request, particularly given that she was an excellent employee and it had numerous CNAs and frequent turnover. Damages limited. However, the employee was not entitled to liquidated (double) damages because there was no evidence that the employer lacked reasonable grounds for believing it was entitled to deny her request for three months. There is no controlling authority, noted the court, resolving one way or another whether three months of additional unpaid leave was too much to constitute a reasonable accommodation. The court also found that the evidence did not support a lost-pay award over $4,000. Consequently, the order provided her the option to remit the lost-pay award to that amount and, should she refuse, a new trial would be granted on lost pay.

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