SCOTUSEmployers know that when an employee returns from Family and Medical Leave Act (FMLA) leave due to the employee’s own serious health condition, the employee must be restored to his or her position or an equivalent position if the employee can perform the essential functions of the job. But what’s an employer to do if the employee returns from a leave and can’t perform the essential job functions? Because the FMLA no longer applies to the employee’s situation, the employer is free to fire the employee, right?  Wrong. Beware employers: this is a trap!

Employers- just because the FMLA may no longer apply, don’t forget to analyze the employee’s situation under the Americans with Disabilities Act (ADA).  This week, the Equal Employment Opportunity Commission (EEOC) issued a press release announcing its latest lawsuit against an employer, Kaufman Children’s Center, which failed to consider a reasonable accommodation for an employee who was returning from a leave of absence, but who was still unable to perform all of the essential job functions.

This is a big deal and one that is not going away, as the EEOC’s press release indicates. Employers not only have to contend with the Department of Labor, which enforces the FMLA, but must also be aware of the EEOC and the laws it enforces, in this case, the ADA. Reed Group has written about the nexus of FMLA and state leave of absence laws with the ADA several times, such as here and here.   Employers -your work is not finished once an employee has returned from or exhausted FMLA or a state leave of absence for the employee’s own condition. You must consider the employee’s circumstance in light of the ADA or risk facing a visit from the EEOC!

Reed Group can help. In addition to helpful blog articles like this and useful whitepapers, Reed Group helps thousands of employers and employees navigate the intersection of leave of absence and ADA accommodations through our signature LeavePro™ software and AbsenceCare™ services.

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