EEOC    The Family Medical Leave Act (FMLA) protects the jobs of employees of companies with more than 50 full-time employees who miss work due to reasons covered under the Act.  The maximum amount of leave provided under the Act is 12 weeks.

The Americans with Disabilities Act requires reasonable accommodation of employee disabilities and applies to employers with 25 or more employees.  The ADA makes no provision for leave.

The EEOC believes that reasonable accommodation includes leave, whether that is in the law or not is totally irrelevant.

Case is point is EEOC v. Dialysis Clinic, Inc.  The facts are fairly straightforward.  Ms. Francis Lee, a 13 year employee of DCI, was diagnosed with breast cancer.  Three months later she took FMLA leave to begin treatment.

DCI has an extraordinarily generous medical leave policy that offers 30 additional days of leave on top of FMLA leave.  Ms. Lee was unable to return to work at the end of her medical leave; indeed, she notified DCI it would be at least 2 months before she would be able to return to work.  Unsurprisingly, DCI terminated her employment and told her she could re-apply for work when she was able to do so.  Courts have held that employers who voluntarily allow employees to remain on leave beyond established policy points must honor them, so this was reasonable, right?

No, says the EEOC.  Because Ms. Lee was disabled she was due an interactive discussion to determine if giving her another 2 months’ leave was reasonable.  That’s right, because they did not have the discussion to consider something that was clearly unreasonable (else they would not have terminated her employment), they violated the ADA.

Ms. Lee made several attempts to regain employment with ECI but never did. ECI ultimately hired a newly licensed nurse for a staff position 3 months after Ms. Lee was cleared to return to work.  The EEOC interpreted this action as proof Ms. Lee was being discriminated against on the basis of her disability.

DCI is contending it did nothing wrong and the EEOC has taken it to court.  The Commission seeks back pay and benefits for Ms. Lee as well as compensation for past and future losses.

“Given the ADA’s mandate, I would urge employers to be flexible concerning leave extensions if it causes no undue hardship,” said EEOC San Francisco Regional Attorney William R. Tamayo. “Ms. Lee had over 30 years’ experience in dialysis treatment and really wanted to work. Our investigation showed that she only needed two more months to return to work. Why sacrifice a valuable employee with a good record over an arbitrary time limit?”

The EEOC has been blazingly consistent, and HR practitioners and managers must take note.  Even though the ADA does not have a leave component, the EEOC believes additional leave is a reasonable accommodation.  They clearly do not expect employees who have exhausted their FMLA leave to be terminated without an interactive discussion.  Anything less than that is begging for trouble.