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Ignorance of Interplay between FMLA and ADA Can Be Costly To Employers

One mistake often made by employers is assuming that after an employee has exhausted his or her 12 weeks of protected Family Medical Leave Act (FMLA) leave, the employer’s obligation is fulfilled. While this may satisfy the employer’s medical leave obligations, the employer also must account for any potential duties under the Americans with Disabilities Act (ADA). The ADA requires employers to “reasonably accommodate” employees with disabilities and such accommodation can include granting additional leave.

A California case highlights this point. A California jury, finding that her former employer had violated the ADA, awarded a former drug addiction counselor more than $4.5 million in damages. Hill v. Asian American Drug Abuse Program, Inc., No. BC582516 (Cal. Sup. Ct. Jan. 19, 2018). Della Hill, while out on protected medical leave after breaking her arm, was diagnosed with major depressive disorder. Her medical leave was set to expire on March 23, 2015, but prior to its expiration, she submitted additional medical information to her employer on her diagnosis and requested additional leave. Instead of granting the request, her employer, the Asian American Drug Abuse Program (AADAP), terminated her on March 31, 2015, for failing to return from medical leave.

After determining that AADAP had failed to reasonably accommodate her disability, the jury awarded Hill $1.9 million in damages (approximately $550,000 in economic damages, and $1,350,000 in non-economic damages). The jury also determined that AADAP had acted with malice, oppression, and/or fraud, which allowed the jury to award another $2.6 million in punitive damages.

Hill’s attorney noted that AADAP did not provide “a single example of any effort … to accommodate Hill,” and claimed that AADAP had attempted to “cover up” its violation with pretextual reasons for Hill’s termination. Indeed, if the jury perceived AADAP’s proffered reasons as pretextual, it may have been key in determining AADAP had acted with “malice, oppression, and/or fraud,” triggering the additional punitive damages.

Key takeaways from this case include:

  • Don’t assume that adverse employment actions are permitted simply because an employee has not returned to work after exhausting FMLA leave. Consider whether additional leave is available under the ADA. If uncertain, consult with qualified employment attorney prior to taking action.
  • The broad definition of “disability” can include mental afflictions such as depression and anxiety. Further, an employee need not mention the ADA or ask for a “reasonable accommodation” to put the employer on notice of a possible need for accommodation.
  • Diligently document all interactions, especially on reasonable accommodation. Employers must be able to show that they engaged in a good faith interactive dialogue about potential accommodations.
  • Consider the situation objectively, and be aware of potential pretextual reasons for an adverse employment action. A jury may determine that pretext constitutes “malice, oppression, and/or fraud,” which opens up the possibility of punitive damages.
Jackson Lewis P.C. © 2020National Law Review, Volume VIII, Number 50


About this Author


Daniel J. Moses is an Associate in the Portland, Oregon, office of Jackson Lewis P.C.  His practice focuses on representing employers in a variety of workplace law matters, including litigation, preventive advice, and counsel.

Before working with Jackson Lewis he practiced in a small CA boutique firm. He provided counsel to clients dealing with multi-million dollar cases, including employment litigation, general business litigation, and complex litigation. His primary area of litigation is in general employment. Daniel is admitted to practice in...