What (Not) to Do When Your Underperforming Employee Requests Medical Leave

by Janette Levey Frisch

Firing or disciplining an employee for performance or disciplinary issues is challenging on a good day. What do you do when that employee requests medical leave? Suppose your employee has already been arriving late and leaving early, and you have noticed a marked drop in his/her performance? Do you have to grant the request for leave? Can you still discipline or even fire him/her?

The answer, as you may have guessed, is “It depends…” Have you documented prior performance, attendance or other disciplinary issues? Have the attendance issues been connected to the medical issue that triggered the leave request? Did you know or have reason to know about that medical issue? Is the employee eligible for FMLA leave? If not, the medical condition may be a “disability” within the meaning of the ADA/ADAAA. Does the condition arise out of a work-related injury? If so there could be workers’ comp issues as well. If you fire or discipline the employee too close to the request for leave, if you refuse to even discuss, let alone grant the requested leave, you could be risking liability under the FMLA, the ADA and maybe workers’ comp. If you are found to have violated the FMLA, in addition to having to pay for the employee’s actual damages, you might have to pay an equal amount in what is known as “liquidated damages”. Yes, that means you would end up paying double damages.

As you can see, these laws are very nuanced. What do you do, then? First, proceed with caution. If the attendance issues are due to the medical condition, don’t comment on his or her attendance, don’t automatically refuse the request–and be very careful if you are looking to terminate the employee. Any of these actions alone or in combination could lead to an FMLA interference/retaliation or ADA discrimination claim.You can  and should speak with competent employment counsel. You can also get some training for yourself and for your company

Virtually every employer in every sector of the American (and global) economy has encountered challenges with Employee Leave issues at one time or another.

  • The Family Medical Leave Act (FMLA) requires covered employers to allow eligible employees up to 12 weeks of unpaid job-protected leave and benefits to care for their own or a family member’s serious health condition.
  • The Americans with Disabilities Act (ADA) and the Americans with Disabilities Act Amendments Act (ADAAA) require employers to provide reasonable accommodations to qualified employees with disabilities so that they can perform the essential functions of their jobs—and a leave of absence may very well be such a reasonable accommodation.An FMLA-eligible employee may also be protected under the ADA/ADAAA, and therefore qualify for an extended leave of absence –beyond the FMLA’s 12 week maximum.
  • If that’s not enough when you have employees who are eligible for time off from work under workers’ compensation laws, the potential for overlap, not to mention administrative headaches and the impact on your company’s bottom line seems to increase exponentially.

These three seemingly different bodies of law often intersect in a way that leaves many employers scratching their heads. Believe it or not, Employee Leave doesn’t have to give you headaches!

In an article published in the Employer & Labor Law by By Scott H. Casher and George C. Morrison, they explain the rules of engagement in this complex topic:

Three Basic Rules
Three basic rules will help attorneys and employers begin to navigate through the
intersection of the FMLA, the ADA, and workers’ compensation laws successfully.

  1. Evaluate the situation under each law separately.

It does not matter which law is applied first, but employers must apply each law separately to determine the outcome under that statute.

2. The law that provides the most benefit to an employee trumps.

In some situations, one of the laws may dictate that an employer has no obligation
to an employee, while another law may require a significant obligation. As a general rule, an employer must follow the law that is most favorable to an employee.

3. Reevaluate the situation under each law when new information regarding the
employee’s condition is received or a deadline passes under one of the laws. This task requires excellent coordination. Supervisors are usually the first to receive new  information on an employee’s condition, while the office of human resources typically monitors deadlines under laws such as the FMLA.

In addition, legal counsel may need to review proposed actions before the supervisor can proceed.

Read the complete article, Navigating the Intersection of the FMLA, ADA, and Workers’ Compensation- A Systematic Approach and Analysis“, 


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