The ADA and FMLA collided in two cases recently and, whenever that occurs, accident reconstruction, so to speak, is in order. In Wisbey v. City of Lincoln, NE, emergency dispatcher Wisbey was granted intermittent FMLA leave for the "next 6 months or longer" because of depression and anxiety. Her FMLA paperwork prompted the City to question whether she could do her job at all. The City terminated Wisbey after a psychiatrist concluded that Wisbey was not fit for duty. The Eighth Circuit affirmed summary judgment for the City on Wisbey’s ADA and FMLA claims, but the significance of this case is in the court’s blending of FMLA and ADA concepts: 

• "the FMLA does not provide an employee ….with a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implied that she is not qualified for a position where reliable attendance is a bona fide requirement (citation omitted);" 

COMMENT: The FMLA allows, indeed entitles, eligible employees to take up to 12 weeks of intermittent, unforeseeable leave, requiring only as much notice as is practicable, at least according to the DOL regs. Many cases have held that, under the ADA, an employee with substantial, unscheduled, unpredictable absences is not a qualified individual with a disability. 

• "Because Wisbey requested ‘intermittent leave’ for ‘six months or longer’ she did not have a right to FMLA leave."  

COMMENT: While "six months or longer" may suggest a request for indefinite leave, the FMLA entitles an employee to such leave up to the 12 weeks per year cap. Perhaps the court was thinking that a request for indefinite leave is not a request for a "reasonable" accommodation under the ADA. 

In Carmona v. Southwest Airlines Company, the ADA and FMLA collided once again. For seven years, Carmona, a flight attendant, was granted FMLA leave to excuse absences related to psoriatic arthritis. Since he did not work enough hours to renew his FMLA in 2005, his absences were unexcused and he was terminated for excessive absenteeism.

The Fifth Circuit rejected Southwest’s argument that Carmona was not a "qualified individual with a disability" under the ADA because he could not meet the essential function of regular attendance. and held that because Southwest "tolerated [Carmona’s] FMLA-approved absences for seven years," which permitted him to miss over half of each month without notice, regular attendance was not an essential function. The court said "if Southwest had denied Carmona’s request for intermittent FMLA leave [i.e., violated the FMLA], it might have had a strong argument that as a matter of law Carmona was not qualified to work as a flight attendant." Following this logic, regular attendance will not be an essential function of a job for anyone who has taken FMLA leave, since the employer tolerated that legally required leave.

The outcome of these two ADA-FMLA collisions? While Wisbey understates (if not misstates) the FMLA leave entitlement, Carmona punishes an employer in an ADA case for complying with the FMLA! The message from these two cases is clear: When your analysis brings you to the intersection of these two laws, proceed with extreme caution!