After Completing FMLA, The Employer Uses The Interactive Process And Lawfully Terminated Its Employee

by Steve Bogue
(402) 341-3070

The crossroad between the protections of the FMLA and the ADA is somewhat difficult to navigate. However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to enforce its work rules and lawfully terminate an employee.

In Colonna v UPMC Hamot, an office assistant was diagnosed with a medical condition which caused her to have difficulties seeing upon waking. She needed sixty to ninety minutes after waking to be able to drive safely. She was granted and used all available FMLA hours during the course of taking mornings off so she could safely drive to work.

Following the completion of her FMLA leave, the employer repeatedly engaged in “interactive process” under the ADA and met with her to determine there was a reasonable accommodation for her condition which the company assumed to be a disability. It allowed her to wear sunglasses to work, turned off lights in the office and closed the front blinds. After she requested further accommodations, the employer suggested further alternatives such as changing her start time to 9:00 a.m. provided she would work until 7:30 p.m. that evening, permitting her to go on short term disability, working part time, or arranging for her to ride with a co-worker. She declined all those options because she didn’t have childcare available and wanted to maintain full time status.

The company apparently saw this problem coming, and realized it had not strictly enforced its absence and tardiness policy. It made an announcement to all employees that the policy would now be strictly enforced. After that announcement, all employees who were late three or more times were disciplined.

After the employee returned to work following the conclusion of her FMLA leave, the company did not enforce the time and attendance policy against her for a week as an adjustment period. Once it began enforcing the policy, the employee was late ten times during the next two weeks.

Her doctor stated that if she got up earlier, such as at 6:00 a.m., she could attend work on time. Taking that into consideration, after the employee’s additional request for a late start time, and following discussions about the matter with the employee on several occasions, she was terminated for tardiness.

The employee’s subsequent lawsuit was dismissed. Assuming the eye condition was a disability, the Court noted that punctuality and attendance were essential functions of her job because she had to be at the office to process patients who arrived in the morning. Additionally, based on her doctor’s testimony that she could get up a little earlier and be at work on time, the Court concluded that she did not actually require an accommodation in order to arrive on time for work. Importantly, the Court noted that the company acted conscientiously and in good faith throughout the process, considered her request for accommodation even before the FMLA had expired, and, additionally, did not interfere with the full use of available FMLA.

The lesson for employers is clear. The company allowed that full use of FMLA leave and revisited accommodations requested by the employee on several occasions as new medical information became available. The company offered accommodations, and, further, pressed the employee to provide further medical information about her need for a late start in the morning. Upon receipt of that information, the company was able to evaluate it and found that, in actuality, no “late start” as an accommodation was either feasible, because of the essential functions of the job, nor required from a medical perspective.

The Colonna decision illustrates the importance of communicating with employees in situations involving leave for medical reasons, taking the employee’s suggestions under consideration, and documenting the efforts to work with the employee. It also illustrates the importance of obtaining and scrutinizing available medical certification of the condition upon which either leave is sought or accommodations requested.

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