Employee medical leave can be difficult to manage, as there are often various compliance considerations with different laws. This is especially true for companies that are subject to the Family and Medical Leave Act (“FMLA”) (companies with 50 or more employees) and the Americans with Disabilities Act (“ADA”) (companies with 15 or more employees). For example, an employer may give an employee all the FMLA leave the employee is entitled to (12 weeks for non-military, 26 weeks for military) and then terminate the employee under a “no-fault” absence policy when the employee fails to return to work. However, even if an employee’s leave is no longer covered by the FMLA (or it did not qualify for FMLA coverage in the first place), the employer may be required to provide leave as a reasonable accommodation under the ADA. On January 7, 2015, the Northern District of Oklahoma released a decision that demonstrates the interplay between the FMLA and the ADA, highlighting the importance of maintaining flexible attendance policies to ensure compliance with overlapping obligations.

Amanda Jurczyk was an account services representative for Cox Communications for 14 years. She was hospitalized for chronic migraines in May of 2013 and again in July. The following month, she was terminated for not having an FMLA day approved in time. Amanda sued Cox alleging violations of the ADA and the FMLA. Cox moved to dismiss the claims, but the court denied the motion.

The ADA prohibits employers from discriminating against a “qualified” individual on the basis of disability. An employee is qualified within the meaning of the ADA if the employee can perform the essential functions of the job, with or without reasonable accommodation. Cox argued that because Amanda conceded that she was terminated for non-FMLA approved absences, she was not qualified to perform the essential function of having regular and punctual attendance. The court rejected this argument, noting that an allowance of time for medical care or treatment may constitute a reasonable accommodation under the ADA, regardless of whether such time is excused as FMLA leave.

In light of the recent uptick in litigation related to the intersection between the FMLA and the ADA, it is important that companies review and possibly revise their attendance policies. When considering practical solutions that reduce the risk of a claim and allow the employer to better defend itself, keep in mind the following:

• Language that unequivocally states employees must return to full duty at the end of FMLA could be interpreted as not allowing for additional days off as a reasonable accommodation under the ADA
• No-fault attendance policies should, at the very least, state that employees may be eligible for additional leave as an accommodation under the ADA
• Ensure that absences occasioned by the FMLA or ADA are not mistakenly treated as absences under a no-fault policy and are not counted against employees in performance reviews
• Train managers and supervisors to notify HR of all requests for leave and time off
• Review each case independently under the FMLA and the ADA, understanding that the answer under one law may not be the answer under the other.

By Destyn D. Stallings, dstallings@dsda.com