FMLA Leave May Be Held Against Employee

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December 7, 2006

A Judge in the U.S. District Court for the Eastern District of Virginia recently held that leave taken under the federal Family and Medical Leave Act may be held against an employee in determining whether the employee can perform his essential function of attendance for purposes of an Americans with Disabilities Act claim. Payne v. Fairfax County, E.D. Va. No. 1:05CV1446, 11/1/06.
The case involved an individual who held a job where it was undisputed that his regular attendance was essential and that working at home was not an option. The Court found that there were no reasonable accommodations that would allow the employee to perform the essential functions of his job. The Court also held that to allow the employee to come in late, leave early, and miss work would require reallocating his work to coworkers and that those requested accommodations were unreasonable.
The employee had been diagnosed with several health conditions that required him to miss work often. He exhausted his sick leave and filed for FMLA leave. When he used up his FMLA leave, he requested an accommodation that would allow him to come in late, leave early, or occasionally miss a day. In denying the employee’s ADA claim, the Court stated:

If an employee cannot perform the essential function of attendance, even if due to FMLA leave, then the employee is still not a “qualified individual” within the meaning of the ADA. . . . To rule otherwise would be a judicial expansion of the plaintiff’s rights under the ADA.

The Court also held that its holding was consistent with the Department of Labor regulations which state that FMLA leave does not modify the ADA.
The employee also filed a claim under the FMLA alleging his employer had interfered with his FMLA rights and had retaliated against him for exercising his FMLA rights. The employee was unable to establish that the employer’s reasons for terminating his employment were a pretext for retaliation for taking FMLA leave.
This case provides some hope for employers who have employees who continue to have absenteeism problems after they have exhausted their FMLA leave. Employers may not count absences that qualify as FMLA leave against employees under their absenteeism policies or take action against employees for exercising their FMLA rights. However, according to this Court, there is no ADA violation if an employer can establish that the employee s absences are so frequent and so long as to establish that they cannot perform the essential function of regular attendance and there is no reasonable accommodation available such as working from home or reallocating responsibilities.
CAUTION FOR WISCONSIN EMPLOYERS
Wisconsin employers must be a bit more cautious. The accommodations requested by the employee in this case would probably be found to be reasonable under Wisconsin law and a Wisconsin employer would have to prove that to provide the accommodations requested would create a hardship for them. Therefore, the outcome of this case under Wisconsin law may have been different.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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