The Employer's Legal Resource: Don't jump the gun when your employee cannot return to work after exhausting FMLA leave.


In case you've missed all the others, here is one more reminder. The law does not allow an employer to automatically discharge an employee after exhausting the Family and Medical Leave Act ("FMLA") leave entitlement. You have to take one more step and determine if there is an accommodation which might be had under the Americans with Disabilities Act ("ADA").

Cierra Grant worked for a medical facility in Georgia as a Pharmacy Technician. Grant became pregnant and experienced health complications during her pregnancy which required her to take FMLA leave before the birth of her child. She gave birth by caesarean section on December 5 to her daughter.

Grant spoke to the HR Director on December 8 and was advised her FMLA was set to expire the following day, December 9. There was some conversation about her need for time to recover from the C-section, but nothing was formalized. Grant did not return to work on December 9 nor did she expressly request an extension of her leave. Grant actually received a release to return to work on December 12, but she did not inform her employer.

Grant was verbally advised by phone on December 17 that she was being discharged, effective December 18.

Among the claims brought were claims for violations of both the FMLA and the ADA. The court granted summary judgment to the employer on the FMLA claims. It was undisputed that Grant had received the 12 weeks of leave guaranteed by the FMLA, and it was undisputed that the employer terminated her for failing to return following her leave.

The claims are more complicated under the ADA. Both parties agreed Grant was "an individual with a disability" under the ADA. The employer argued that Grant was not a "qualified" individual with a disability because she could not perform the essential functions of her position as she was not at work at all. The court noted that the "ADA, however, 'covers people who can perform the essential functions of their jobs presently or in the immediate future.'" (Citation omitted). In that the only essential function at issue was attendance, Grant had the opportunity to prove that she could perform that function with a reasonable accommodation.

Under the facts, Grant was ultimately released to return to work December 12 – which would have been a short extension of her leave. The court denied the employer's motion for summary judgment (sending the case to trial) because the employer did not demonstrate that granting the additional short leave would have been an undue hardship.

Lessons –

  • Medical leave situations must be analyzed under the FMLA and the ADA separately
  • The ADA focuses on the employer's response to situations and whether it engaged in an interactive process to determine whether a qualified individual with a disability can be reasonably accommodated
  • As a matter of best practices, no employee should be terminated at the conclusion of their FMLA leave, based upon a medical inability to return to work, without the employer engaging in the interactive process and considering whether a reasonable accommodation can be had

Grant v. Hospital Authority of Miller County, Case No. 15-CV-201 (MD. Ga. 2017).

By Kristen L. Brightmire,

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Justin B. Munn

Justin B. Munn

Justin represents clients throughout Oklahoma in family law, civil litigation, guardianships, adoptions, estate planning, trust and probate matters. 

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