Always think about the ADA when you grant Family Leave

An employer recently paid $1,350,000 to settle an EEOC lawsuit arising from the employer’s failure to consider ADA leave as accommodation for absent employees and employees who had exhausted their 12 weeks of FMLA leave. According to the EEOC, the employer fired employees who were not eligible for FMLA leave after being absent for a short time and fired employees who did not return to work after exhausting their 12 weeks of family leave.

This settlement is a reminder to employers to consider an employee’s potential right to leave as an accommodation whenever an employee cannot return to work upon expiration of their FMLA (or OFLA) leave, and to examine the reason for employee absences before terminating an employee for such absences.  Where an absence appears to be for a health condition that might qualify as a disability (whether or not the FMLA/OFLA applies), employers need to engage in the interactive process with the employee to determine if unpaid leave is a reasonable accommodation for that disability.

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