By David M. Foy, Esq.

No Good Deed Goes Unpunished After Leave Given to Ineligible Employee

In 2018, the Sixth Circuit Court of Appeals considered whether summary judgment was warranted where an employee was terminated after she was unable to return to work on a full-time basis as she was recovering from postpartum depression and separation anxiety.  As a new employee, she was not eligible for family and medical leave, but the employer agreed to allow 12 weeks of leave.  Prior to returning, her physician stated that she needed to work a reduced schedule but put no restrictions on her work activities.

The Court found that summary judgment was not warranted because there were genuine disputes of material fact as to whether the employee could meet an essential function of her job (full-time work), and thus, was not otherwise qualified for the job.  Notably, the employee presented evidence that, while working on a part-time schedule, she timely satisfied all of the core tasks of her position, but there was also record evidence that the employee was not completing all of her work during her part-time schedule.

Moral of the Story:

Extreme care should be taken before considering a request to grant FMLA leave where the employee is not eligible. Doing so presents the risk that waivers must be granted to other employees. Regardless, employers should document performance issues, particularly when approving extended leave beyond the FMLA.

When Enough Leave is Enough

In a recent case, the Seventh Circuit Court of Appeals affirmed the District Court’s decision and held that a multi-month leave of absence is beyond the scope of a reasonable accommodation and that the employer’s denial of a two to three month extended leave did not violate the ADA. Examining whether the plaintiff could perform the essential functions of his job, the Court stated that an employee who needs long-term medical leave cannot work and, thus, is not a “qualified individual” under the ADA.

In this case, the plaintiff took a twelve-week medical leave under the FMLA to deal with serious back pain. Before this leave expired, however, he notified his employer that he was scheduled to undergo back surgery and requested an additional two to three months of leave to recover from that surgery.  The employer denied the plaintiff’s request, terminated his employment, and invited him to reapply when he was medically cleared to work. Plaintiff sued, alleging a failure to reasonably accommodate his disability.

Moral of the Story: While this decision has not been adopted in the Sixth Circuit, it does provide some guidance with respect to the length of requested leave time considered to be a reasonable accommodation.

For more information on FMLA or other employment matters, please contact David M. Foy at 313-496-1200 or, or a member of Berry Moorman’s Labor & Employment Law Practice Group.