Dive Brief:

• Walmart allegedly refused to accommodate a manager with epilepsy and fired him after his seizures caused him to miss work, in violation of the Americans with Disabilities Act, the U.S. Equal Employment Opportunity Commission charged in a March 30 lawsuit (EEOC v. Wal-Mart Stores East, LP, No. 23-00160 (E.D. N.C. March 30, 2023).
• The manager worked at a store in Raleigh, North Carolina, according to the complaint. About a year and a half before he was terminated, he started having seizures that required medical attention and made him unable to work for limited periods of time, the lawsuit alleged. He requested two accommodations: intermittent leave and that his absences be excused as disability-related. The complaint said Walmart did not grant his requests and demoted him, allegedly because of his absences. After he was late or missed work 14 times between February and July 2018, Walmart fired him for violating its attendance policy, even though the seizures caused the absences, the complaint alleged. 
• The EEOC sued Walmart for failing to grant the manager a reasonable accommodation and for firing him because of his disability. “Absent undue hardship, intermittent leave can be an effective reasonable accommodation under the ADA,” EEOC regional attorney Melinda C. Dugas said in a press release announcing the lawsuit. “Employees with disabilities should be able to seek medical treatment without fear of losing their jobs,” Dugas said. Walmart did not respond to a request for a comment prior to press time.

Dive Insight:

An accommodation request for leave under the ADA can raise complicated compliance issues for HR, particularly if the request seems to conflict with a company policy or intersects with the employer’s obligations under the Family and Medical Leave Act. 

To comply with the ADA’s reasonable accommodation requirement, an employer may have to change the way it customarily does things — such as by modifying a leave policy — to enable employees with disabilities to work, according to an EEOC guidance. Specifically, employers must consider providing unpaid leave if doing so will reasonably accommodate an employee’s disability, so long as the leave doesn’t create an undue hardship, the guidance states. 

The FMLA entitles an eligible employee to 12 weeks of unpaid leave (including intermittent leave) in a 12-month period under certain circumstances, according to the U.S. Department of Labor, which enforces the law. These circumstances include when an employee has a qualifying “serious medical condition.”

ADA compliance issues intersect with the FMLA in a couple of ways. Two recent EEOC cases show how the issue can arise.

First, in October 2022, a jury sided with the EEOC and awarded $6,000 in compensatory damages to a worker with an anxiety disorder. According to the EEOC’s complaint, the employer denied the worker’s request for intermittent leave and told her she was ineligible for leave under the FMLA and fired her.

The case reminds employers that, according to the EEOC guidance, even if an employee is not eligible for FMLA leave — or is not covered by the employer’s leave policy — because the employee hasn’t worked enough hours to be covered, the ADA may require it to determine if the employee is entitled to an ADA accommodation.

Second, in February 2022, the EEOC settled a case involving a trucking and property management company that allegedly violated the ADA by terminating employees because they weren’t able to return to work after exhausting their 12 weeks of FMLA leave. The company agreed to pay $65,000 to resolve the charges.

If an employee who’s exhausted their FMLA leave requests additional leave to be able to return to work, the employer may have to provide the leave, absent undue hardship, according to EEOC guidance. The agency takes the position that complying with the FMLA doesn’t necessarily meet an employer’s obligation under the ADA. “The fact that any additional leave exceeds what is permitted under the FMLA, by itself, is not sufficient to show undue hardship,” the guidance explains.

However, the ADA doesn’t make clear how much leave is reasonable, creating a gray area that courts have tried to address. For example, in 2021, the 5th U.S. Circuit Court of Appeals found that a worker was not entitled to additional leave under the ADA after she exhausted her FMLA leave because she didn’t specify a return-to-work date, as the ADA doesn’t require employers to grant indefinite leave as an accommodation.