Do you need to adjust performance expectations under FMLA? Can regular attendance be considered an essential function of a job? Is telecommuting a reasonable accommodation? Is it okay to terminate an employee after they request FMLA? Several recent court cases provide answers to some of your most common questions about administering various employment laws.
You may be required to adjust performance expectations under FMLA.
A decision made in 2012 by the Seventh Circuit Court of Appeals in Pagel v. TIN, Inc. finds that while employers do not need to adjust performance standards for the time an employee is actually on the job under the Family Medical Leave Act (FMLA), FMLA can require that performance standards are adjusted to avoid penalizing an employee for being absent during their leave.
In the case, an employee was fired for not meeting sales expectations mainly because he had missed work for treatment, which was covered under FMLA. The employer, however, failed to adjust the employee’s performance requirements to account for FMLA-qualifying leave. The court felt that the employer violated FMLA when it failed to make a reasonable adjustment to the employee’s performance expectations to account for FMLA protected leave and terminated the employee for failing to meet those expectations.
Attendance is an essential function of some jobs.
Earlier this year, two courts found that attendance was an essential function for some jobs, but noted that regular attendance may or may not be an essential function of other jobs.
In Samper v. Providence St. Vincent Medical Center, a neo-natal nurse requested that the hospital accommodate her medical condition by allowing her to miss work when she had a bad day. The hospital agreed that the nurse had a disability and the skills to do the job and accommodated the nurse for years, but eventually terminated her and argued that she was not able to perform the essential function of the job by regularly showing up to work. The court found that letting the nurse miss work whenever and for as long as she needed to was not reasonable for the position’s requirements.
In a similar case, Valdez v. McGill, a supervisor was granted intermittent FMLA leave to deal with colon cancer surgery. After exhausting 12 weeks of leave, he asked for more leave or other reasonable accommodations under the Americans with Disabilities Act (ADA), but his organization terminated him. The supervisor's employer argued that he could not perform the essential functions of the job with an accommodation, which included needing to be in the warehouse, and the court sided with the employer.
Another case also finds that requests for indefinite breaks or leave from performing essential functions of the job are unreasonable.
Telecommuting may be a reasonable accommodation in certain circumstances.
In 2012, there had been a few court decisions about work-at-home options as reasonable accommodations under ADA. The outcomes of these court cases seem to suggest that when determining whether telecommuting is a reasonable accommodation, employers may need to justify why an employee could not perform their job duties remotely. The EEOC also offers some guidance on whether work-at-home options can be considered reasonable accommodations.
For example, in one court case, J.P. Morgan Chase was found to have violated ADA when it did not provide evidence that an employee could not perform his job duties remotely after he requested to work-from-home due to an anxiety disorder. The court found that general performance dissatisfaction did not justify denying the employee a telecommuting arrangement, especially because employees in similar roles had such an arrangement (Source: SHRM).
A similar decision made by a federal court in Ohio said that telecommuting may be a reasonable accommodation based on certain facts about the employee and workplace, however, in EEOC v. Ford Motor Co, the court concluded that that the employee requesting the option to telecommute could not work-from-home, particularly because no other employees in the same position were allowed to telecommute.
Timing terminations close to FMLA requests may result in liability.
Last but not least, a couple more 2012 court cases continued to emphasize the importance of not timing adverse employment actions (such as terminations) with requests for reasonable accommodations and FMLA leave. For example, in Rose St. Cyr v. Brandywine Senior Living, Inc., an employee was terminated right after she requested FMLA leave for violating several workplace rules and undergoing several stages of progressive discipline.
Similarly, in Marez v. Saint-Gobain Containers, Inc., two days after a production supervisor requested FMLA leave, she was terminated for multiple production infractions, despite the fact that other production supervisors made the same types of infractions. The court found that because of this inconsistency and the timing of the termination, the organization fired the employee for requesting FMLA leave.
Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.
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