January 02, 2014
ADA/FMLA overlap can be tricky: Terminated employee sues for discrimination, retaliation

by Karen Gwinn Clay

Employee medical leaves can be difficult to manage, as there are often various compliance considerations with different laws. A recent decision from the U.S. 5th Circuit Court of Appeals examined the overlap between the he Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).

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What happened

Karen Owens was a teacher for Calhoun County School District for 17 years. She suffered from neck and back pain for years and eventually needed surgery. She began medical leave on October 19, 2009. Owens' principal, Paula Monaghan, told her she could remain on leave until she received her final X-rays.

During her leave, Owens had discussions about educational support for her son with the school district. She eventually took her complaints about the school district's failure to provide her son with adequate educational support to the Mississippi Department of Education.

On January 20, 2010 (three months and one day after Owens commenced leave), Monaghan called her to ask when she could return to work. Owens said she had a doctor's appointment on February 12 and if the doctor released her, she might be able to return on February 15.

On February 2, superintendent Mike Moore sent Owens a letter stating that her FMLA leave would expire soon. Moore asked Owens to provide him with a return date so her employment status could be determined. Meanwhile, rumors that Owens did not intend to return to work and was moving to another state began to surface.

On February 4, Owens and Monaghan spoke by phone again. Owens again informed Monaghan that she had a doctor's appointment on February 12 or 15, but she did not provide a return date.

On February 9, Moore terminated Owens by letter for failing to return to work when her leave expired and not providing the school district with a return-to-work date. Owens appealed Moore's decision to the Calhoun County School Board.

The school board found that (1) Owens' medical leave had been exhausted, (2) she was negligent in failing to inform the school of when she could return to work, (3) there was no evidence that she had been cleared to return to work, (4) she submitted no documentation showing that she had been released to return to work, (5) she worked part-time at another school while she was on leave, and (6) she completed six hours of graduate coursework at a local university while she was on leave.

Owens sued the school district, alleging violations of the FMLA, the ADA, the Age Discrimination in Employment Act (ADEA), and the First and Fourteenth Amendments to the U.S. Constitution. The federal trial court in Oxford dismissed her claims. Owens appealed the dismissal of her ADA discrimination and First Amendment retaliation claims to the 5th Circuit, which covers Louisiana, Mississippi and Texas. Let's see what the appeals court said about her claims.

ADA discrimination

As you are probably aware, the ADA prohibits employers from discriminating against a qualified individual on the basis of disability. On appeal, Owens claimed there were questions of fact regarding whether she was capable of returning to work and whether the school district provided her with a reasonable accommodation. The school district argued that the accommodations she requested constituted indefinite leave, which it was not obligated to provide.

The evidence showed that Owens did not provide the school district any certainty as to when she could return to work, nor did she provide documentation that she had been cleared to work. The court noted that she still had not provided a doctor's release at the time she appealed the termination decision to the school board.

First Amendment retaliation

To establish a retaliation claim under the First Amendment, an employee must allege that (1) she suffered an adverse employment action, (2) her speech involved a matter of public concern, (3) her interest in commenting on matters of public concern outweighed the employer's interest in promoting efficiency, and (4) her speech motivated the employer's adverse action.

The court determined that Owens' complaints about the education her child received did not involve a matter of public concern. Thus, they were not protected by the First Amendment. Owens v. Calhoun County School District, 2013 WL 5530578 (5th Cir., Oct. 8, 2013).

What to remember

It may not be OK to terminate an employee simply because her FMLA leave has expired. In fact, it is probably safe to assume that you will run afoul of the ADA if you do. If an employee needs a few extra weeks to be able to return to work because of a serious medical condition, treat the condition as a disability. Consider offering extra leave time as an accommodation.

You do not have to provide employees with indefinite leave, which is essentially what Owens was asking for. If you are faced with an employee who demands to continue her leave indefinitely, you will not violate the ADA by terminating her.

Karen Gwinn Clay, of The Kullman Firm, can be reached at kgc@kullmanlaw.com.

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