How to avoid FMLA, ADA disputes

By Matthew Kelly and Eric Meyer

The Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) protect employees with certain medical conditions from employer discipline or other adverse employment actions. All too often employers do not know their obligations under the law and expose themselves to lawsuits.

Take, for instance, this scenario: A waiter at your restaurant walks into your office and tells you that he has been suffering from back pain and requests time off from work to get surgery. Are you required to give this employee time off from work?

Requirements for Leave
Under the FMLA, if: (a) your business has 50 or more employees working at locations within 75 miles; (b) the employee has been employed for at least 12 months at your restaurant; and (c) that employee has worked at least 1,250 hours in the preceding 12 months, then he/she is eligible to take off up to 12 weeks of unpaid time during a 12-month period for a “serious health condition.” A back injury requiring surgery is a serious health condition. Under the ADA, if your business has 15 or more employees, this employee may also have a “disability” and, therefore, be eligible for time off from work as an accommodation.

Requirements for Accommodations
Now, let’s imagine that an employee walks into your office and tells you that he has been suffering from back pain, but is not necessarily requesting time off from work. What are you obliged to do?
As alluded to above, under ADA, employers are required to accommodate an employee with a disability to allow that person to perform the essential functions of his/her job, unless doing so would create an undue hardship, i.e., significant difficulty or expense for the employer. Under ADA, a “disability” is any physical or mental impairment that substantially limits one or more major life activities. Back pain could seriously impair one’s ability to wait on tables for long periods.

The federal Equal Employment Opportunity Commission, the agency tasked with enforcing ADA, has cited several examples of possible reasonable accommodations. These include: making existing facilities accessible; job restructuring; part-time or modified work schedules; acquiring or modifying equipment; reassignment to a vacant position; and leave from work. ADA requires the employee to initiate a dialogue with the employer about the appropriate accommodation given the type of disability and the nature of the job. Once the employee initiates this process, it’s up to the two sides to have a good-faith discussion about which accommodation(s) are reasonable.

What are some reasonable accommodations for the employee with back pain? Potential options may include temporary reassignment to a position (e.g., light duty) that won’t aggravate his back or reducing his/her hours of work to allow for rest and recuperation between shifts.

General Tips to Help Avoid FMLA and ADA Disputes

Good preparation: Educate your employees about their rights by ensuring your employee handbooks adequately cover these laws and train your managers and supervisors about how to deal with employee requests for FMLA leave and ADA accommodations.

Good documentation: Document all conversations with employees. Make sure that employees provide medical certifications where required and that you are providing the required paperwork to your employees in connection with their requests.

Good communication: When employees go out on extended FMLA leave, touch base with them periodically to see how they are doing and to reconfirm their return date. When it comes to ADA accommodations, don’t avoid your responsibility to engage the employee in an interactive dialogue. Otherwise, you may find yourself in court.

Insurance considerations: Fairly broad coverage exists for FMLA violations in an Employment Practices Liability policy (EPL). Typically, the definition of wrongful act in an EPL policy includes coverage for violations of the FMLA. With regards to coverage for violation of the American with Disabilities Act, in most situations there will only be defense coverage available for ADA claims, with varying limits offered.
FMLA and ADA have many nuances and it’s highly recommended that businesses consult with a lawyer and insurance broker to ensure they act in accordance with the laws to avoid disputes and to determine whether proper insurance is in place.

Matthew Kelly is a producer at The Graham Company, one of the mid-Atlantic region’s largest insurance and employee benefits brokers. Eric Meyer is a partner in the labor and employment group of a Philadelphia-based law firm, Dilworth Paxson LLP.