How Sarcastic Emails Can Hurt Your Company’s ADA Defense

By Craig Annunziata and Steve Miller

To: HR Manager

Subject line: Are you kidding me?

Body of email: Can you believe the nerve of this employee? He just had 12 weeks off and now he wants another six? You’ve got to be kidding me.

From: Employee’s Manager

We made up the above email message. However, it’s very similar to the types of emails we’re seeing when we defend administrative charges and lawsuits dealing with discrimination, harassment and retaliations.

For managers, the ADA landscape has changed

For example, supervisors are sending poorly worded and curt emails to HR managers when employees request additional time away after they’ve exhausted their leave under the Family Medical and Leave Act (FMLA). In fact, the laments of managers are so prevalent that we felt it necessary to write this article.

We wince at emails like these. They are frequently discoverable in litigation and easily misconstrued. Judges and juries are prone to interpret these communications as an indication that the company is discriminating against disabled employees or otherwise not adhering to the expansion of the Americans with Disabilities Act (ADA). In reality, managers simply don’t understand that the ADA landscape has changed.

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As you are probably well aware, the ADA was amended in 2008 to include a much broader range of disabilities and to provide protection to a wider swath of employees who are unable to work for a variety of medical reasons. The fact of the matter is that more employees are permitted to more time off than ever before.

EEOC is “increasingly aggressive”

Once their FMLA leaves runs out, employees can sometimes turn to the ADA for additional time off. In fact, the employee doesn’t even have to make a request. The onus is on the employer to ask employees if they need more time to recover once their FMLA lapses.

Since the ADA’s expansion, the Equal Employment Opportunity Commission (EEOC) has been increasingly aggressive about suing companies they believe are refusing to provide the required accommodations for injured or ill employees. Now is the worst time possible for managers to express their staffing frustrations over email. The EEOC is ferreting out employers who are failing to get with the times.

“FMLA plus,” as we call it, is a new reality that floor supervisors need to get used to. As such, HR managers should inform managers they need to avoid complaining about extended absences of employees or questioning their motives over email.

As the old saying goes, if you don’t have any thing nice to say, don’t say anything.

Craig Annunziata and Steve Miller are attorneys with Fisher & Phillips, a national labor and employment law firm. Annunziata is managing partner in the firm's Chicago office. He represents management in employment-related disputes before federal and state courts and alternative dispute forums throughout the U.S. Contact him at cannunziata@laborlawyers.com . Miller is a partner in the Chicago office and representing management in all areas of labor and employment law, including employment discrimination, employment contracts, and employment law compliance. Contact him at smiller@laborlawyers.com.

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