Employee Larry Bernhard was diagnosed with neck cancer and took FMLA time off for surgery and radiation treatment. When his FMLA time had expired, he still needed about three more months to complete and recover from the treatment.

His supervisor terminated Bernhard rather than extend the additional three months’ leave.

The court held that the additional leave of absence may have been a reasonable accommodation under the ADA (Bernhard was one of 16 employees in his same position). Moreover, there was little evidence that the supervisor had engaged in the interactive process or analyzed prior to Bernhard’s termination whether additional leave of absence would have been an undue burden under the ADA. Thus there was an issue of fact to present to the jury as to whether the employer had violated the ADA.

The Lesson

If the employee cannot return to work or returns but cannot resume full duties following FMLA leave, always consider whether you need to engage in the ADA interactive accommodation process. Further leave of absence or a reduced schedule might be a reasonable accommodation. The failure to discuss this with the employee can lead to an ADA discrimination claim.

Bernhard v. Brown & Brown of Lehigh Valley Inc., (E.D. PA. June 14, 2010).

To read more about FMLA, ADA and return-to-work, read our Reed Group FMLA update.

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