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Accommodation of a disability

The intersection of pregnancy and disability discrimination, FMLA/maternity leave, and pregnancy related illnesses like post partum depression

It is a common misperception that the federal Family Medical Leave Act (FMLA) provides all the leave an employer is required to give employees. Massachusetts law requires a more flexible approach when the employee has a disability and the exact date of return is not yet determined.

Independent of the FMLA, the employer must engage in an “interactive dialogue” to determine what constitutes a reasonable accommodation for a disabled employee. In MCAD v. LaPete Country Bank for Savings, the Massachusetts Commission Against Discrimination ruled in favor of a new mother who unsuccessfully tried to discuss additional time off with her employer, beyond the 12 weeks allowed under the FMLA. The employee was not asking for an open-ended leave of absence.

Here are the facts: it became clear to the employee that her depression was not improving while she was on maternity/FMLA leave. At her employer’s request, she provided a documentation with a diagnosis from her counselor of post partum depression and anxiety. The counselor wrote that the employee would eventually recover, but that it was premature to pick an exact date for the return to work.

The employer responded by sending a letter with a unilateral deadline for the employee to return to work. The employee and her attorney unsuccessfully appealed to Human Resources to extend the leave. The employee was fired. In addition to lost salary and benefits, the evidence showed that she regressed in her recovery as a result of this sequence of events.

The MCAD ruled that the employer’s misplaced reliance on the 12 week FMLA leave period was not justified. An employer must, independent of the FMLA, engage in an interactive dialogue with an employee about reasonable accommodations that will help her do her job, including but not limited to additional leave. The employee met her obligation to keep the employee updated about her disability. The employee tried to have an interactive dialogue with the company about her return to work. The employee was not asking for indefinite leave. The employer’s refusal to participate in an interactive dialogue and the decision to fire her was illegal.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464
617-969-2900

pam@pamsmithlaw.com

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