All employers (at least, those with 50 or more employees) must deal with the issue of whether or not the ADA requires them to allow “disabled” employees to take additional time off of work after they have exhausted their FMLA leave as  “reasonable accommodation.” The EEOC has even taken the position that an employer must allow unpaid leave until it can prove that it would be an “undue burden” to continue to do so.

On September 20, 2017 the Seventh Circuit Court of Appeal issued a ruling that is remarkable in its common sense. In Severson v. Heartland, the Seventh Circuit held that Heartland had not violated the ADA when it terminated Mr. Severson upon the expiration of his 12 weeks of FMLA leave rather than allowing him an additional two to three months of leave to recover from back surgery.

Continue reading “Three Cheers For the Seventh Circuit” →

Today’s SHRM Daily Newsletter contains an article entitled “Leave Employees Alone During FMLA Time Off”. In the article, the author admonishes employers to rarely “call an employee in” or to contact the employee for work-related purposes while the employee is on FMLA leave. I agree with the author. If you contact an employee regarding work while they are on FMLA leave, you are asking to be sued and, I would never actually ask them to come in to work for anything short of a dire emergency. One element that the author did not stress is that all such work must be 100% voluntary. If the employee feels threatened or coerced to perform the work while on leave, you have violated the Act, even if you allow them to continue their leave and reinstate them when they are released to return to work.

Having said that, if you find that you absolutely must contact an employee while they are on FMLA leave, don’t forget your obligation to compensate them for the time.

Continue reading “Can You Contact an Employee While They are on FMLA Leave?” →