Yesterday a federal jury ruled in favor of my client (actual verdict form here) on her disability discrimination and retaliation claim, deciding she was forced from her $9.25/hour CNA job at the end of her FMLA leave even though her employer could have extended her unpaid leave under another law, the Americans with Disabilities Act (ADA). She was able to find replacement work again quickly, so her financial losses were modest. The jury awarded her full lost wages ($6,000.00) and an additional $50,000.00 for pain and suffering.
Many employers violate their employees’ rights this way. Many think they can fire you the moment your FMLA leave ends, on the mistaken belief that your right to unpaid medical leave is over. They don’t consider the other law – the Americans with Disabilities Act (ADA) – which, like the FMLA, requires employers to provide unpaid leave for covered medical conditions. Unpaid leave under the ADA should begin the moment FMLA leave ends, without a gap. Firing an employee who’s out of FMLA leave, but who is entitled to continued unpaid leave under the ADA, is a clear violation of that law.
If you’re facing a situation where your FMLA leave is likely to expire before you’re ready to come back, here’s what to do:
- As soon as you know you may not come back when your FMLA leave ends, make a written request for additional unpaid leave as an accommodation under the Americans with Disabilities Act.
- Strictly follow your employer’s policies in making the request. If your employer requires you to submit the request to the HR manager, do exactly that. Making the request to the wrong person could jeopardize your rights.
- Use the word “accommodation,” the words “unpaid leave,” and “the Americans with Disabilities Act.” Right way: “It appears I may be unable to return full-duty on the day my FMLA leave expires. For this reason, I request an accommodation under the Americans with Disabilities Act in the form of additional unpaid leave, beginning [insert date your FMLA leave ends] and ending [insert your return date]. Wrong way: “I don’t know if I’ll be able to return when my FMLA leave runs out, and I’d like to talk about working something out.” Courts require your request to be one that a reasonable person would understand to be a specific request for accommodation. Asking to talk about “working something out,” for example, might refer to a decision to quit. Leave no room for misunderstanding. Use the buzz words. Do not waffle.
- Be sure you specify an exact date you expect to be able to return, even if it’s your best estimate. Ambiguity here is fatal. Never submit an accommodation request that leaves the employer guessing about when you’ll be back. Right way: “I will be able to return August 10, 2015.” Wrong way: “I’m not sure at this point when I will be back; it might be several months or longer.” Courts have held that employers are not required to approve requests for leave of an uncertain length. That kind of request will usually result in termination, not unpaid leave. Doctors’ notes, if you rely on one, must be equally precise. A physician’s note that says “Length of leave: unknown/indefinite”, or “Followup appointment scheduled for June, with return-to-work-date to be assessed at that time,” or “May be able to return in X months” will also usually leave you unprotected and subject to firing upon expiration of your FMLA leave. Doctors will often kindly write whatever you want, but the law, not your doctor, determines whether the note protects you or results in your firing. If you rely on a doctor’s note, be sure to attach it to a specific written request for accommodation. Do not just hand the doctor’s note in without explanation.
- Be proactive once you make your accommodation request. Follow up in writing and ask about the status. Press for a decision before your FMLA runs out.
- If your request is denied, ask for an explanation, and then use any appeal procedure your employer has to challenge it. You may be forced to make a tough decision about whether to return before you’re ready or risk termination. You might have a claim for FMLA and ADA violations, but for some people keeping the job has to be their top priority, no matter how outrageous the violation of their legal rights.
- If your original request for extended unpaid leave is denied, consider immediately asking for alternative ADA-based accommodations. These could include a shorter period of unpaid leave than you first requested, or modified duties if you do return immediately. For example, if your job involves lifting, and you cannot lift the moment you return from FMLA leave, a reasonable accommodation might be a temporary reassignment of tasks that require lifting to others. There are lots of options.
- Beware of claims that you didn’t provide the right note, the right information, or enough information. Some employers try to delay action, by you or by them, hoping that you’ll either miss a key deadline or simply give up. NFL referees are trained to spot this tactic – “delay of game” – and penalize teams for this violation. Congress, in passing the law, created its own flag for employers who delay decisions. Employers who wrongfully delay action on accommodation requests can be held liable for harm resulting from the delay.
NFL Signal for Delay of Game. Some employers are guilty of the same violation in responding to ADA/FMLA requests.
Finally, bear in mind the occasional possibility that your employer may not know it has an obligation to provide additional unpaid leave or other accommodations under the ADA. The laws change. Some employers, especially smaller ones, can’t always keep up with those changes. That’s not an excuse for violating your rights, but consider that as one possible explanation for delays, at least initially. But keep your eye on relevant deadlines so your employer’s delays don’t lull you into inaction. And be sure your requests are clear, specific, in writing and directed to the right people. That way, you’ll have a path for relief if your employer takes the wrong path (or, through delay, takes no path).
June 18, 2015