Monday, December 23, 2013

Clearing the ‘Hardship’ Hurdle when FMLA and ADA Collide

The overlap of the FMLA and ADA has become a huge concern for employers. Reason: More employees are turning to the ADA to milk more job-protected leave out of their employers once their FMLA leave expires.

Once employees exhaust their FMLA leave, they can still request an accommodation of more leave under the ADA, if: 
  • they have an ADA-covered disability (which, thanks to the ADAAA, could be nearly any ailment diagnosed by a physician), and 
  • the time off helps them get back to performing the essential functions of their jobs. 
One way employers can get out of having to provide employees with additional medical leave under the ADA is to prove that providing an accommodation — whether it be more leave or some form of on-the-job-assistance — would create an “undue hardship” for their organizations. 
A big hurdle on that route, however, is that courts are placing the burden on employers to prove than an undue hardship exists — rather than asking the employee to prove that their accommodation request doesn’t present a hardship. 
Complicating the matter even further: There’s no set of standards or guidelines for what constitutes an undue hardship for an employer.
But a recent case helps paint a picture of what you can do to prove an undue hardship exists. 
Focus on co-worker impact 
After returning from 12 weeks of FMLA leave for knee-replacement surgery, a nurse employed by a senior living facility provided a note from her doctor stating she couldn’t kneel, squat or lift more than 50 lbs. She requested an additional six weeks of leave or other accommodations that would allow her to return to work. 
Her employer denied her request and terminated her. So she sued under the ADA. 
In getting the court to rule in its favor, the senior living facility successfully convinced the court that her requests under the ADA presented an undue hardship. 
For starters, the facility showed that lifting more than 50 lbs was an essential part of her job (her job description actually required her to lift at least 100 lbs), and an inability to perform that duty could be potentially dire to the patients she treated. She occasionally had to lift patients who’d fallen down. 
Secondly, it showed that granting her additional medical leave would also present an undue hardship, because in her absence under the FMLA, the facility had already spent $8,000 to add staff via a temporary overnight nurse to fill her position. 
And, in what seems to be the pivotal argument in this case, the facility explained that the modifications to its patient care procedures — which would result from the nurse’s continued absence — would put additional strain on her co-workers, thus hindering them from performing their duties and creating an unacceptable level of care.
That is a particularly compelling argument other employers should take to heart for this reason: The purpose of the ADA is to protect employees, and courts tend to enforce the law through that lens. So by convincing the court that granting the nurse additional leave under the ADA would essentially harm other employees, the senior living facility was able to show that enforcing the law would actually result in the opposite of its intended effect. 
Bottom line: If you believe an accommodation request would create an undue hardship, the best way of proving that point may be to show that the request would result in strenuous additional duties for other workers. 
Cite: Attiogbe-Tay v. Southeast Rolling Hills LLC 
This post originally ran on our sister website,