When Twelve Weeks is Not Enough: FMLA, ADA and NYCHRL

by Marc A. Rapaport, Esq

Most plaintiffs’ employment lawyers are all too familiar with the stinginess of the Family Medical Leave Act (“FMLA”), both in terms of the substantive protections that it offers, and the damages that it makes available. Like decaffeinated coffee or nonalcoholic beer, the FMLA can, at times, seem a bit too weak to get excited about. The unavailability of punitive or emotional distress damages under the FMLA is particularly frustrating, given the seemingly modest burdens that the law typically imposes on employers.

Because of the limited protections and penalties offered by the FMLA, I often emphasize the Americans With Disabilities Act of 1990 (the “ADA”), and New York City’s Human Rights Law (“NYCHRL”) when pursuing employees’ claims that arise from or relate to health conditions. Unlike FMLA, the ADA does not impose a bright-line time restriction with respect to leaves of absence. The reasonableness of an employee’s request for a leave of absence involves a fact-sensitive analysis that will typically involve a case-specific review of both the employer’s needs and the employee’s medical condition. Although the length of the requested leave is a crucial factor in determining the reasonableness of the request, the ADA does contain a clearly delineated time restriction.

The success of a claim under the ADA depends, in part, on a plaintiff’s ability to walk through a dangerous minefield: she must establish that (a) she suffers from a “disability”, as defined by 12102(2) therein, but (b) is not so disabled as to be unable to perform her essential work responsibilities if given a “reasonable accommodation”. Clearly, many plaintiffs have failed in their efforts to stake a claim to the narrow territory that lies between being insufficiently impaired, and thus unable to meet the ADA’s restrictive definition of disability, on the one hand, and overly impaired (or perhaps insufficiently accommodable) on the other.

The precariousness of the tightrope that must be traversed in every ADA case is manifested by the comparative statistics that have been compiled regarding different types of discrimination claims. With regard to summary judgment, claims for disability discrimination are more likely to be dismissed than any other type of discrimination claim. Berger, Finkelstein and Cheung, Summary Judgment Benchmarks for Settling Employment Discrimination Lawsuits, 23 Hofstra Labor and Employment Law J., 45, 60 (2005). In its annual surveys of ADA claims, the American Bar Association has reported similarly dismal results for ADA plaintiffs.

Despite the considerable challenges associated with disability-related employment claims, I believe that these types of cases can be both personally fulfilling and financially rewarding. Because my practice overwhelmingly involves clients who live and work in New York City, many of my clients receive the benefit of the NYCHRL’s less restrictive definition of “disability” and more generous provisions relating to damages. In the Second Circuit, we also benefit from the relatively favorable position that the Court here has adopted with regard to the issue of whether, and under what circumstances, a leave of absence can constitute an accommodation required under ADA.

One common scenario involves employees whose exhaustion of FMLA leave is misinterpreted (or exploited) by employers as a basis for denying additional accommodations that may be required under the ADA. These cases involve a common theme-the unwarranted presumption that the employer’s obligations toward a disabled employee ends with the FMLA’s twelve-week leave of absence.

In actuality, where an employer has been made aware that an employee’s disability precludes her from returning to work after the twelfth week of FMLA leave, it is incumbent upon an employer to consider the accommodations required under the ADA. In these situations, the greater protections afforded by the ADA require an employer to commence the interactive process with the employee regarding the accommodations (including a longer leave of absence) that could be afforded. The requirement that an employer consider a request for additional leave is particularly clear in matters subject to the jurisdiction of the Second Circuit, which has unequivocally held that unpaid leave is a legitimate accommodation under FMLA. Parker v. Columbia Pictures Industries 204 F. 3d 326 (2nd Cir. 2000).

At bottom, FMLA may not be used as a pretext for denying the full range of benefits available to an employee who qualifies under the ADA. FMLA regulations make it clear that when both the FMLA and the ADA laws apply in a given case, or conflict in a given case, the employer must “comply with whichever provides the greater rights to employees.” See, C.F.R. § 825.702(a).

As alluded to above, the Second Circuit has not permitted employers to supplant the broader leave of absence required under the ADA with the more limited FMLA protections. In Parker v. Columbia Pictures Industries 204 F 3d 326 (2nd Cir. 2000), the Court held that: (a) a leave of absence may constitute a reasonable accommodation under the ADA, and (b) an employer may not circumvent its duty to investigate and determine the feasibility of a request for leave solely because an employee has exhausted the leave provided for under FMLA or the employer’s personnel policies.

Some circuits have taken more restrictive approaches toward leaves of absence under the ADA in general. E.g., Byrne v. Avon Prods., Inc. 328 F.3d 379 (7th Cir. 2003)

The Second Circuit’s decision in Parker offers important guidance with regard to several key issues that arise in these types of cases. Significantly, the court in Parker flatly rejected the notion that a facially neutral personnel policy can trump an employer’s duties to investigate and accommodate under the ADA. Id. at 338. The Parker decision suggests that an employer’s policy may run afoul of the ADA even if it is completely silent as to disability.’ An employee who is terminated for exhaustion of leave is deemed to have been discriminated against “because of disability within the meaning of the ADA”, where his or her request for an accommodation was not appropriately investigated or acted upon by the employer.

Where an employee’s medical condition does not necessitate a continued leave of absence, or where there is concern that an employer could establish that continued leave would impose an undue hardship, it may be appropriate to request a part-time work schedule or other scheduling accommodation upon the expiration of the twelve-week FMLA leave period. See, e.g., Ralph v. Lucent Technologies, 135 F.3d 166 (1st Cir. 1998).

Particularly in light of the favorable precedent in the Second Circuit, and the generous provisions of the NYCHRL, FMLA leave should be viewed as the beginning, rather than the totality, of the options that may be available to employees with medical impairments.

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