How to Handle an Employee Returning from FMLA Leave Who May Need an ADA Accommodation
- Step 1: Employers should have in place an ADA policy that is included in their employee handbook and properly communicate the policies to all employees.
- Step 2: Require employees returning from FMLA leave to provide a fitness-for duty certification.
- Step 3: Determine whether the employee's request for reinstatement puts the ADA "in the picture."
- Step 4: If the ADA is "in the picture," decide whether to place the employee on paid leave or in a temporary position while addressing the accommodation issue.
- Step 5: If the ADA is "in the picture," decide whether to treat the employee as having an ADA-protected disability.
- Step 6: If it is appropriate to treat the employee returning from FMLA leave as disabled, then unless a suitable accommodation is both obvious and raises no issues of expense or other burdens, engage in a fully documented "interactive process" with the employee to determine if there is a reasonable workplace accommodation for the employee's limitations.
- Step 6: Decide if the employee can perform the job's essential functions with any of the accommodations under consideration, and if necessary perform a "direct threat" analysis.
- Step 7: If the disability or some of the resulting limitations are not permanent, decide whether temporary light duty (or an additional period of leave) can be a bridge to a full duty position.
- Step 8: For accommodation options that would enable the employee to perform all the essential job functions, assess the impact on operations and, if appropriate, perform an "undue hardship" analysis.
- Step 9: Fully document every step in the interactive process and the process of deciding on the response to the employee's accommodation request.
- Additional Resources
Author: Barton A. Bixenstine, Vorys, Sater, Seymour and Pease LLP
The Americans with Disabilities Act (ADA) may entitle an employee with an ADA-protected disability to be reinstated from an FMLA leave even though the employee is not able to perform all the essential functions of his or her job. Reinstatement may be required if a modification of job duties or some other accommodation will allow the employee to perform the job's essential functions, or even if, in the absence of such an accommodation, the employee can be reassigned to a different position, the essential functions of which the employee can perform, without or without accommodation.
Here is how to handle an employee's request for an accommodation upon return from an FMLA-protected leave. Guidance on how to handle a request for additional leave as an accommodation are contained in a separate guide titled How to Handle Employee's Request for Leave as an Accommodation.