State Law - Tennessee
cjus10200
8 Posts
We have an employee that works out of the state of Tennessee (home office is located in Florida). He will very shortly have exhausted all of his Family and Medical leave. Our policy says we will terminate employment once FMLA leave has been exhausted if the employee is unable to return to work. Does anyone know if there are any state leave laws for Tennessee that might give this employee additional protection beyond the 12 weeks of FMLA? Or if you can direct me to a web site that I can research it that would be great.
Comments
[quote user="regdunlop"]the first thing that comes to mind is that the ADA might protect this person if their condition qualifies as a disability. you may have to provide a reasonable accommodation (absent undue hardship) such as more unpaid leave.
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There have been quite a few court cases lately that talk about the interaction of ADA and FMLA. FMLA is to protect your job for a certain amount of time. The ADA is meant to provide accommodations so that the employee can be on the job working. Being able to work is an essential function of any job description. Generally the argument has been made that the 12 weeks of FMLA is reasonable accommodation and much more than that is not. And that if the employee can not work at all, then they are not covered under ADA.
"The Court found that Plaintiff's FMLA absences can be used to show that she cannot fulfill her position's attendance requirement. Relying on the decision of the court in Payne v. Fairfax County, No. 1:05cv1446, 2006 WL 3196545 (E.D.Va. Nov. 1, 2006), the court found that the FMLA does not modify the requirements of the FMLA. If an employee cannot perform the essential function of attendance, even if due to FMLA leave, then the employee is not a "qualified employee" within the meaning of the ADA.
Comment: This is the second decision establishing that the FMLA leave can be used as evidence to to establish that an employee is not entitled to the benefits and protections of the ADA where, as is often the case, attendance is an essential function of the employee's position. " http://federalfmla.typepad.com/fmla_blog/ada/index.html
Also in the same link (but an earlier article),
"The Court found that the DOL regulation "explicitly provides that the FMLA does not modify the ADA in any form. This leads this Court to conclude that the statutes should be read independently, and if an employee cannot perform the essential function of attendance, even if due to FMLA leave, then the employee is still not a "qualified individual" within the meaning of the ADA. To rule otherwise would be a judicial expansion of a Plaintiff's rights under the ADA and run directly contrary to" Section 825.702. In support, the Court cited the decision of the Eighth Circuit in Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847, 852 (8th Cir. 2002), which held that the rights created by the FMLA are fundamentally different than those granted under the ADA.
Comment: The court observed that issue has not been addressed by any Circuit court. Note that it was undisputed that regular attendance was an essential function of the mechanic position in Payne. In ADA litigation, employers often assert that an essential function of the position is regular attendance. Employees, however, often dispute this assertion with evidence of liberal leave policies or practices. Court have permitted temporary leave as a reasonable accommodation to an employee's disability. Courts have generally frowned on overly liberal or extensive leave as an ADA reasonable accommodation, finding that such leave is an undue hardship to the employer that does not have to be accommodated. "