Like Shooting Fish in a Barrel

Many employers think that when an employee is out of FMLA medical leave, that if the employee exceeds 12 weeks that they should fire them so as to not be discriminatory to other employees who return in 12 weeks.  There was little danger in taking this approach before the amendment of the ADA by the ADAAA in 2008, which made it much easier for an employee to be classified as having a disability.  Prior to 2009, almost no employees would ever qualify as having a disability under the ADA.  Now, after the ADAAA, most employees who have a serious illness will qualify for ADA protection.  When the employees qualifies for ADA protection, the employer must consider whether the employee might need a reasonable amount of extra time off  after the expiration of the FMLA time, under the reasonable accommodation provisions of the ADA.  Failure of an employer to consider this accommodation, especially if asked for it by the employee, is a violation of the ADA.  I have seen this happen on occasion now and it is like “shooting fish in a barrel” to win one of these cases.