Employers must have well written employee manualsDetroit’s Greektown casino was sued on October 3, 2016, by the U.S. Equal Employment Opportunity Commission (EEOC) for allegedly violating the Americans with Disabilities Act (ADA) by denying a reasonable accommodation to and then firing an employee because of his disability.

The former employee, Michael Lepine, was a pit manager for Greektown Casino. The lawsuit alleges that in February 2012 Lepine collapsed at work and was hospitalized for his stress/anxiety disorder. Lepine had previously exhausted his Family And Medical Leave Act (FMLA) time due to a previous stress-anxiety related leave in 2011.

He then requested additional medical leave to return to work and submitted leave paperwork, including a doctor’s note, indicating that he would need leave through April 30, 2012. Greektown allegedly responded by requiring Lepine to return to work without restriction by April 2, 2012, or request nonmedical leave. When this did not happen, Greektown terminated Lepine’s employment on April 3, 2012.

A copy of the complaint is available here (EEOC v Greektown Casino (10-3-2016). According to an EEOC statement, it was filed a voluntary pre-litigation settlement through its conciliation process failed to resolve the claim. The EEOC’s seeks to recover monetary compensation for the former employee in the form of back pay and compensatory damages for emotional distress, as well as punitive damages.

This case is very early in the litigation phase. However, there a few points employers should note and understand.

Leave Obligations under FMLA and ADA

First, employers are often faced with overlapping and sometimes conflicting obligations when it comes to the FMLA and ADA. The FMLA offers benefits to employees with certain medical conditions. And those health conditions may entitle the individual to protection under the ADA.

Second, the threshold coverage for the ADA and FMLA are significantly different. For starters, the ADA is broader in its coverage and that it applies to any company that is “engaged in an industry affecting commerce” and that employs 15 or more employees for each working day in each of 20 or more calendar weeks in the current or previous calendar year.”

In contrast, the number of employees necessary for an employer to be covered by the FMLA is 50 or more employees within a 75-mile radius. The FMLA also imposes employment tenure, hours worked, and other requirements for employees to be eligible for leave. Thus, while the FMLA threshold requirements are more restrictive, the potential for overlapping application of the ADA and the FMLA routinely exists.

Third, the core purpose of the FMLA is to provide qualified employees with leave – a maximum of 12 weeks of leave in a 12-month period. However, the ADA does not expressly provide for leave. But many courts have held that a reasonable accommodation may involve a part-time schedule in a current position or intermittent leave.

Further, EEOC Policy Guidance on this subject provides that an employer may not apply a policy of automatically terminating employees “after they have been on leave … to an employee with a disability who needs leave beyond” a standardized period. In other words, the EEOC’s position is that an employee who exhausts his or her entitlement to 12 weeks of leave under the FMLA may still be entitled to some additional period of leave as a reasonable accommodation if that person meets the ADA’s definition of “disability.”

For more information about complying with the FMLA, ADA, or other federal and Michigan employment law statutes, contact Michigan attorney Jason Shinn. Mr. Shinn routinely works with employers with respect to understanding their obligations under these statutes. Also, since 2001, he has litigated these issues in federal and Michigan courts.