We often receive calls from employees and employers about unpaid medical leave from work. Callers want to know whether an employee who has a serious health condition under the FMLA, but who cannot return to work after 12 weeks of FMLA leave, has any additional legal protections. The answer is that it depends. Many court cases recognize that finite and short additional periods of unpaid medical leave beyond the 12 weeks afforded by the FMLA can be a reasonable accommodation under the Americans With Disabilities Act. Employers who receive requests for additional unpaid medical leave should ask appropriate questions to determine the length of additional leave the employee is seeking, the likelihood that the additional leave will enable the employee to return to work, and how other employees who require leave for reasons unrelated to health or disability are treated. In the run of cases, finite and short periods of additional medical leave are a reasonable form of accommodation, particularly when the prognosis for recovery is favorable. This means that in many situations, an employer will be required to grant the request for additional unpaid medical leave, provided it does not impose or create an undue hardship. Of course, every case depends on its unique facts.
As reported April 1, 2013 by Anna Louie Sussman of Reuters:
Two recent complaints filed with the U.S. Equal Employment Opportunity Commission seek to clarify the rights of pregnant women under a 2008 amendment to the Americans with Disabilities Act. Both complaints were brought by pregnant women who said they were denied reasonable accommodations for pregnancy-related disabilities.
Since 1978, the Pregnancy Discrimination Act (PDA) has prohibited employers from treating pregnant women differently from similarly situated employees. In 2008, Congress passed the Americans with Disabilities Act Amendments Act (ADAAA), expanding the definition of disability to cover pregnancy-related impairments, and the EEOC issued regulations codifying the act in March 2011.
In a complaint filed Thursday, Amy Crosby, a cleaner who makes $9.09 an hour at Tallahassee Memorial Hospital, said she suffered from carpal tunnel syndrome. Her symptoms intensified in her 23rd week of pregnancy, which she said made it impossible for her to lift heavy bags of laundry and trash. After Crosby submitted a note from a chiropractic neurologist attesting to pregnancy-related carpal tunnel syndrome, the hospital said the information needed to come from her obstetrician. Crosby’s obstetrician said she could not diagnose her and recommended a neurologist for the pains in her arm. Several supervisors refused her requests for work with limited lifting, and she was involuntarily placed on unpaid leave under the Family and Medical Leave Act.
“They just kept saying, ‘It’s policy, it’s policy,'” Crosby told Reuters.
According to the complaint, which was filed by the National Women’s Law Center, other hospital employees who had suffered injuries or were otherwise unable to complete aspects of their jobs had been accommodated.
A spokesman for the hospital said he had not seen the complaint and could not comment on it.
A separate complaint filed in January by the American Civil Liberties Union alleges that United Parcel Service Inc failed to accommodate driver Julie Desantis-Mayer when she was pregnant in the spring of 2012.
In August, the company offered her a light-duty position on the condition that it would not count toward seniority or benefits, an offer she described as “unlike, and worse than UPS’s accommodation of other, non-pregnant employees.”
A spokeswoman for UPS said the company does not discriminate against pregnant workers and that it adheres to all aspects of the law.
Typically, the EEOC attempts to mediate between the parties, and if that fails it investigates the claim. If the investigation finds that a law has been violated, the EEOC can settle, sue or, in some cases, refer the case to the Department of Justice. If no violation is found, the aggrieved party can still sue privately.
A spokesman for the EEOC declined to comment on the two cases.
But in its three-year strategic enforcement plan, released in December 2012, the agency identified accommodating pregnancy-related limitations under ADAAA and the PDA as an “emerging issue.”
With little case law on the books since the regulations were issued in March 2011, employers are in uncharted waters, said Stacie Caraway, an employment lawyer at Miller & Martin PLC in Chattanooga, Tennessee, who is not involved in either case. For example, she said, it is difficult to tell whether the hospital’s request for additional documentation was unreasonable. “We had 25 years of case law with the ADA to tell us what was reasonable and what was not, but now we’re starting from scratch,” she said. “That’s what makes these cases kind of a crapshoot.” Employers should be “conservative” and lean toward accommodating workers where possible, Caraway said. “If the proof shows that someone has a pregnancy-related disability, then the employer does have a duty to accommodate it as with cancer or any other disability.”
The two cases highlight changes in the legal landscape since the Americans with Disabilities Amendments Act was passed. In a 2008 case filed a few months before the law came into effect, the 4th U.S. Circuit Court of Appeals ruled that the Pregnancy Discrimination Act did not require UPS to accommodate pregnant worker Peggy Young by offering her light duty, despite offering it to workers injured on the job. “The ADAAA certainly broadens the definition of disability and means that a number of conditions caused by pregnancy might be treated as disabilities now, where they wouldn’t have before,” said Samuel Bagenstos, a professor at the University of Michigan Law School and a prominent disability rights advocate. Bagenstos and other lawyers are preparing a petition on Young’s behalf at the U.S. Supreme Court.
Cara Greene, a co-chair of Outten & Golden’s Family Responsibilities and Disability Discrimination practice group in New York, said these cases highlight how the PDA and the ADAAA interact to require accommodations that the court denied to Young. “Employers are missing the fact that just because a disability results from pregnancy, it doesn’t mean they don’t have to accommodate it,” Greene said.
Legislation to codify these obligations has stalled. The Pregnant Workers Fairness Act, introduced last year in Congress, would require employers to make the same types of accommodations for pregnancy, childbirth and related medical conditions as they do for disabilities. It is due to be reintroduced this spring, according to a spokeswoman for the National Women’s Law Center. Galen Sherwin, a staff attorney with the American Civil Liberties Union’s Women’s Rights Project, said that the two laws, the PDA and the ADAAA, should already be sufficient. “If employers are now required to treat a broader category of disabled individuals with compassion by providing them the necessary job accommodations, but they are refusing those same type of job accommodations to pregnant women, that really flies in the face of Congress’s intent in passing the PDA.”