Extra leave to obtain new FMLA certification is not a reasonable accommodation

Court rules employee must be able to perform essential functions of job

Posted September 9, 2016

It can be complex when the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) interact. Recently, a circuit court disagreed with an employee that an extra week of unpaid leave to obtain a new certification with no restrictions would be considered a reasonable accommodation under the ADA.

The employee worked as a juvenile detention officer, which generally demanded a bit of physical ability. Over the years, she took intermittent FMLA leave, but her conditions became such that one of her doctors restricted her from sitting, standing, bending, or stooping for extended periods, and no lifting more than 25 pounds. The employee’s job description indicated that the job required lifting and carrying at least 40 pounds. Because of the restrictions, the employer placed the employee on continuous rather than intermittent FMLA leave. The employee asked her doctor to lift the restrictions, but he refused.

About the time her FMLA leave was to be exhausted, she asked for an additional week of unpaid leave to allow her to obtain an FMLA certification from a different doctor. She claimed that this other doctor would provide a certification without the restrictions.

At first, the company agreed to the extra time off, but a handful of days later, decided to terminate the employee because she could not meet the 40-pound lifting requirement.

The employee sued, arguing that the ability to lift 40 pounds was not an essential function because she did not need to perform it very often. The employer and the court disagreed, and found that the task was related to one of the core purposes of the job — the ability to protect juveniles from harming themselves and others. The job description also listed it as an essential function.

The employee also argued that she would have been able to perform the essential functions of the job with a reasonable accommodation, such as a week of unpaid leave after her FMLA leave expired, so she could obtain a different FMLA certification, or allow her to move to another shift. The employer argued that neither accommodation was reasonable.

The court found that the employee did not show that she could perform the essential functions of the job with a new FMLA certification. The FMLA entitles an employee only up to 12 weeks of leave per year, it does not entitle an employee to extended leave once the 12 weeks have expired. The court also pointed out that even if she had obtained a new certification that lifted the restrictions, the employer was not required to accept the new certification over the original one. Employers aren’t expected to disregard an employee’s treating physician’s opinion expressly imposing physical restrictions.

Even if extending FMLA leave were to be seen as a reasonable accommodation, the employee could not show that she could perform the essential functions of her job with that accommodation. The employee never presented the new certification or any other documentation to support her claim that the new doctor would have given her a revised certification.

In regard to the shift change, the employee failed to show that the new shift would not include the lifting requirement.

Given all this, the court ruled that the employee was unable to indicate that a reasonable accommodation was available that would allow her to perform the essential functions of the job.

Scruggs v. Pulaski County, Arkansas, Eighth Circuit Court of Appeals, No. 15-1248, April 1, 2016.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.

Family and Medical Leave Act (FMLA) Consulting ServicesJ. J. Keller's Family and Medical Leave Act (FMLA) Consulting Services can help your company ensure compliance with FMLA requirements and minimize the law’s burden to your organization.


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