By Mark F. Kluger and William H. Healey
In the tale of two laws that have been wagging the dog (or employer), there is some mixed news on the FMLA and ADA saga. Two recent decisions are worth hearing about.
The first case, decided by a federal appeals court, involves a construction supervisor who hurt his shoulder on the job. Although he had a Workers’ Compensation claim, he asked to return to work so long as the employer accommodated him with a driver (no Uber, he needed a Stretch with fully stocked bar—and so do we ) to bring him to the different jobsites. But this seemingly admirable requested accommodation failed to take into account that an essential function of his job included doing physical labor, which he could not do. In other words, he wanted to be driven to the job to stand around and watch other guys work. Isn’t that a legit construction job? We always see 2 guys working and 3 watching. Apparently not, so the employer denied the requested accommodation and the employee sought medical leave. After a short time, the employer fired the driverless supervisor.
In his lawsuit, Driverless argued that physical labor was not an essential function and that medical leave was a reasonable accommodation under the ADA. The court said that determining essential functions is fact-sensitive and the factors considered are:
- the employer’s judgment (so use the good judgment);
- written job descriptions (don’t make us tell you again to ensure these are done right);
- time actually spent regularly performing the function (make sure you know for sure);
- the impact of that function not being performed; and/or
- how the functions are being handled in the employee’s absence.
As to these last 2 factors, keep in mind that if the function is easily absorbed by others, it may not be “essential.” If you need to hire someone to do it, or if you are paying significant OT to get it done, then keep good records of the cost because that’s how we can prove hardship.
As to the employee’s claim that the employer failed to provide a reasonable accommodation based on his request for leave, this part is kind of cool. Even though the employer pulled the trigger after two months, the court said that the employee never informed the employer of the anticipated length of the leave, which rendered it indefinite and as a result, not reasonable. Specifically, the court said: The leave requested here specified neither a leave for a definite period, nor a return in the near future. The lack of any time frame, no less a short one, justified the employer’s decision to terminate without an ADA violation. We were pleased. Sorry Driverless.
Unfortunately, on July 17, 2018, a different federal appellate court took away our joy. In that case, an HR Generalist in a 6 person HR Department returned from FMLA leave with a note from her doctor stating that for 2 months she needed to work part-time due to severe post-partum depression and separation anxiety. After 2 months, she brought another note saying, guess what? That’s right, she needed to continue part-time status until her next appointment which was in, that’s right, another 2 months! HR or not, the employer terminated her upon receiving the second note because her job was full-time and “too many things were falling through the cracks.” Here’s what went wrong.
First, the employer thought that the employee had exhausted her FMLA leave because it had granted her time off before she was qualified for FMLA and referred to that time as FMLA. So although she had taken more than 12 weeks off prior to returning, when added together, the actual FMLA qualifying time and the intermittent leave (part-time schedule) was still less than 12 weeks, so it was a FMLA violation to terminate her while she had leave time left and was taking it intermittently.
As to the ADA outcome, the employer’s problem was that when pressed on what was “falling through the cracks” due to her part-time schedule, neither her co-workers nor her supervisor could articulate any specifics. In fact, she had a relatively positive performance review during the part-time work period.
Although managers want what they want and may carry on about having to deal with a full-time employee working part-time, their hysteria will not hold up in court if they cannot articulate significant, tangible examples of genuine performance deficits. Cross examination often brings out the truth. So, before making a termination decision based on perception, it is critical to drill down and find out what is really happening on the job. It is also the manager’s responsibility to take ownership of the performance review and do it honestly and thoroughly. If they are not willing to be brutally honest and concrete in the performance review, the termination will be difficult, if not impossible, to uphold legally.
Take aways: (1) Be cynical and mean like us–don’t be duped into thinking that being nice by providing leave early or more than is required will get you anything in return; and (2) be cautious about giving into managers who generalize about how an employee’s reduced work schedule or temporary absence is causing a hardship–challenge them to be creative and discover efficiencies that may not have otherwise found; and (3) insist that managers do honest and specific performance reviews that can support terminations.
On another note, if you truly have nothing better to do tonight, check out Mark’s radio interview on what employers need to know about side hustles with former WSJ journalist Dean Rotbart on MondayMorning Radio http://www.mondaymorningradio.com/