Under the Family Medical Leave Act (“FMLA”), employers are required to provide 12 weeks of unpaid leave to employees with certain family or medical issues. These issues include attending to serious health conditions that make the employee unable to work, or caring for newborns or family members.
A frequent dilemma that employers often face is what to do when an employee has exhausted all available FMLA leave and still cannot return to work. One employer, Gold Medal Bakery, currently finds itself in litigation surrounding this issue.
The dispute started when Robert Thompson, a baker and production technician, had knee replacement surgery in May 2016. He was approved for a three-month medical leave with a return date of August 9.
Thompson alleges that when it became clear he couldn’t return by August 9, he informed Gold Medal’s human resources department. On August 12, when he asked for five more days to submit a physician’s note, he was fired.
He then brought a lawsuit alleging that Gold Medal had violated the FMLA, as well as state and federal age and disability discrimination laws. Earlier this month, Gold Medal filed a motion for judgment on the pleadings, arguing that Thompson’s FMLA claim fails on its face.
Gold Medal makes two main arguments in its motion. First, it asserts that Thompson is challenging its previously adopted policy that “[a]n employee failing to return to work on the scheduled return date after a FMLA leave will be considered to have voluntarily resigned.” This policy, it says, “fully complies with the FMLA.”
Gold Medal points out that the FMLA does not require an employer to do anything more than provide 12 weeks of unpaid leave. Once that leave is exhausted and the employee fails to return to work, it says, the termination of the employee—whether for “voluntary resignation” or otherwise—does not violate the FMLA.
Second, in the alternative, Gold Medal contends that Thompson undisputedly did not provide a certification as to his fitness for duty at the end of his leave, a failure which also allowed it to terminate his employment. Under this policy, it says, Thompson simply took too long to provide the required physician’s note.
We’ll be watching to see how the district court resolves these arguments. The most important takeaway for employers, however, is that Gold Medal is not moving for judgment on Thompson’s claims that it violated the Americans with Disabilities Act (“ADA”) by terminating him after twelve weeks of leave. Thus, Thompson’s disability discrimination claims will proceed to discovery.
As Thompson’s case shows, when an employer is confronted with an employee who does not return to work after a 12-week leave and claims a disabling medical problem, the employer should look beyond the FMLA to its obligations under the ADA. Under the ADA, the employer should examine whether the employee can return to work with or without a reasonable accommodation. The ADA may even require the employer to reassign the employee to another vacant position.
In short, because of the ADA, an employer can’t just rely on a policy that when FMLA leave is exhausted, it can terminate a potentially disabled employee with impunity—no matter how justified that policy may be under the FMLA.