Published by MoASBO, November 2017

What can a school district do when an employee can’t work? A wrong answer to this question can cost your district hundreds of thousands of dollars. Most school officials know the basic pieces of the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), but the puzzle becomes especially complicated when a school district is considering leave options for an employee who is physically or mentally unable to work.

The FMLA and the ADA are different laws with different goals and different protections for employees, but both provide employees with the right to job-protected leave if certain circumstances are met.

Under the FMLA, an eligible employee is entitled to a total of 12 work weeks of unpaid leave during any 12-month period with job reinstatement privileges. An employee is eligible for FMLA leave if they have been employed with the school district for more than 12 months and have worked at least 1,250 hours during the 12 months prior to the start of requested leave. FMLA leave must be provided to eligible employees, regardless of whether the time off would present a hardship for the district.

On the other hand, the ADA aims to prevent discrimination through the provision of reasonable accommodations for disabled employees. A reasonable accommodation can include time off, depending on the specific disability of the employee. As opposed to FMLA leave, however, leave as an ADA accommodation can be denied if it is determined to be unreasonable, i.e., if the leave would create an undue hardship for the district.

School officials need to be prepared for the tricky situations when the FMLA and ADA overlap and an employee is asking for leave. Usually these overlapping requests arise from an employee who has a chronic health condition that qualifies them for FMLA leave to manage the condition and also that qualifies them as disabled under the ADA. Given the varying legal obligations under the FMLA and ADA, it can be difficult for a district to treat these types of leave requests in a lawful, fair, and consistent manner.

Below are some areas of focus to help minimize your districts’ potential liability.

  1. Communicate Early and Often

Employees sue when they feel as if they have been treated unfairly. Consistent communication is always a good way of addressing employee concerns before they turn into a lawsuit. To prevent problems around overlapping leave under the FMLA and the ADA, a school district needs to demonstrate that it kept an open line of dialogue with the employee and continued to engage in the interactive process. The district should communicate with employees on FMLA leave before, during, and after the leave ends. By discussing medical certifications and other issues early on in an employee’s FMLA leave, the district can make a determination about additional leave under the ADA as soon as possible and not wait until after the employee’s FMLA leave is exhausted.

  1. Untrained Principals Create Problems

Principals and building administrators are typically the first individuals at a school district to become aware of an employee’s medical condition and the first to potentially handle a request for leave. Without understanding or considering all of the implications, the principal may very well make a quick decision about accommodating an employee’s health condition (e.g., allowing them to leave work early or come in late; allowing them to take a day or two off to feel better). Once offered, the district is generally stuck with the decision moving forward – both for that particular employee and sometimes for requests from other employees.

Overall, a school district needs to avoid the appearance of favoritism or discrimination, which is more likely to be the case when decisions about leave are made at the building level without input from the central office. Regular, comprehensive training for principals and building administrators is one of the best ways to avoid compliance problems under the FMLA and ADA.

  1. Be Careful with ‘Undue Hardship’

Successfully proving a request for leave as an accommodation under the ADA presents an “undue hardship” for a district is challenging. That said, there is no reason to wait until after an employee’s FMLA leave is exhausted to consider whether “undue hardship” exists. In fact, the earlier in the leave process that the district can reach that determination, the better the chance of that determination holding up in court.

An “undue hardship” must be based on an individualized, case-by-case assessment and should focus on specific factors, like (i) a significant difficulty or expense, particularly with a focus on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation; or (ii) a substantial disruption to the operation of the school district, including the overburdening of co-workers or a detrimental effect on the education provided to students.

Ultimately, school districts walk a fine line when considering leave under the FMLA and ADA. To stay in compliance, districts need to be wary of creating blanket policies that set hard limits on total time off. It is always better to evaluate each request for leave on a case-by-case basis and to engage legal counsel from the onset to eliminate as much liability as possible.