After FMLA Ends, When Can an Employer Safely Terminate an Employee?

In the middle of a global pandemic, employers still grapple every day with the age-old question: When an employee exhausts FMLA leave and cannot return to work, does the law require the employer to provide the employee additional leave? Question 1A surely is close behind: can the employee safely be terminated at that point?  Without debate, these are among the most difficult HR issues an HR professional or in-house employment counsel faces.

The Facts

Take this scenario: Jim is a bus operator for the public transportation system in Columbus, Ohio, and he suffers from back pain due to spinal stenosis (a condition in which spaces within the spine narrow).  Because of the intense pain, Jim takes 12 continuous weeks of leave. After 12 weeks, Jim is not ready to return. And he provides documentation from his physician indicating that he will undergo surgery, resulting in 9 more weeks off work. Jim’s physician confirms he will be able to return to his bus operator position after the end of 9 weeks.

The City of Columbus, however, needs a bus driver right now. It can’t wait 9 weeks for Jim’s return. The City argues that Jim’s absence would cause increased overtime expenses, overburdened operators, and increased recruiting and training costs, thereby imposing an undue hardship on Columbus.

Days later, the City terminates Jim’s employment because it believed his extended absence would create a hardship on its operations.

Is this a problem?

In defense of Jim’s ADA lawsuit, the City argued that it would have been required to incur significant overtime costs, and the forced overtime likely would cause other employees to resign. Replacing the position and training someone up in the meantime also would take quite some time, heavily impacting such a small operation.

The Court agreed, finding that:

• Jim’s absence would cause “significant difficulty or expense,” given the size of the relevant workforce and the number of bus routes,
• the negative impact of his absence on the city’s other bus operators,
• the difficulty of scheduling operators to cover its bus routes while holding open Davis’s position,
• the cost of overtime pay, and
• the expected loss of trained and experienced personnel as a result of forced overtime.

Insights for Employers

What’s the lesson here for employers?

My friend and ADA expert, David Fram, noted several lessons in a LinkedIn post earlier this week, and I think they’re worth using as a guide when approaching these situations:

I agree with David in all respects and, in particular, on a few points:

1. Employers can (and should) assess “undue hardship” earlier in the process.  As we know, the ADA requires an employer to provide a reasonable accommodation to a qualified individual with a disability unless the accommodation causes an undue hardship on the employer. When it comes to leave, employers generally conduct the undue hardship analysis only after the employee has exhausted FMLA leave and is requesting additional leave as an accommodation. However, an employer can and should take the 12 weeks of FMLA leave already provided to the employee when considering whether additional leave would create a hardship. Employers have the flexibility as early as “day one” of an employee’s FMLA leave to assess whether the absence constitutes an undue hardship. Although FMLA would protect that employee’s job for up to 12 weeks, the employer now has an argument that an undue hardship — if properly supported, of course — occurs after FMLA is exhausted.
2. Raising the Issue of Cost is Risky.  As David notes, it is a dangerous proposition to raise cost as a factor in an undue hardship analysis, or at least in the same high-profile manner that the City of Columbus did in this instance.
3. But Effects on Co-Workers can be a winner.  This is so important. If employees are taking on the extended hours, projects and duties left behind by the absent employee, this is quickly going to be a problem. And it’s a concept that is easily articulated to a court. Use this “burden on others” to your advantage when making an undue hardship argument.

When an employee is seeking an accommodation — especially here where they are seeking additional leave beyond FMLA leave — the age-old principles still apply:

• Engage your employee in the interactive process.  It’s not entirely clear from the facts whether this was done to any great extent here, but start the conversation off right by engaging the employee about his return to work.  You’ll want to discuss: What limitations does the employee have? What functions can he/can’t he perform? Are there any modifications we can make to his job to help him get back to work? Have we discussed restructuring his position or temporarily relocating the employee to an open position for which he is qualified?  Can we provide any other accommodation other than leave to help him stay on the job?  The EEOC’s decision to initiate litigation against an employer in these situations often hinges on whether the employer is to blame for the breakdown in this interactive process, so it is critical to master this step.
• Conduct an undue hardship analysis and use this information in the interactive process. Before putting up a fight over whether to provide additional leave and how much to give, doesn’t it make sense first to analyze the impact the employee’s absence is having on your operations?  If it’s not impacting your operations, this will be a key factor in granting additional leave.  However, if it is impacting operations, you want to memorialize this earlier in the process.  In Jim’s case, his absence would continue to impact operations — for example, overtime increased, employees were forced to work longer hours to cover for him, recruiting and training would require significant amounts of time.  Once you have conducted this analysis, tell the employee about it.  Both in person (if possible) and in follow-up correspondence, tell the employee (tactfully and with empathy to his situation) the difficult position you’re in – that x, y, and z are occurring as a result of his absence – and, as a result, it is critical that you obtain a reasonable estimate of when he will be able to resume all essential functions of his employment so that you can better assess whether leave can be provided as a reasonable accommodation.
• As I have noted in previous blog posts, consider these factors below when analyzing whether the requested leave of absence poses an undue burden on your operations:

• • Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
  • Lower quality and less accountability for quality
  • Lost sales
  • Less responsive customer service and increased customer dissatisfaction
  • Deferred projects
  • Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees
  • Increased stress on overburdened co-workers
  • Lower morale

There is no one-size-fits-all approach to these real life situations.  However, by regularly communicating with employees and documenting how they have engaged in the interactive process, employers clearly have a leg up in minimizing ADA and FMLA liability.

Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.