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Worker Fired for Not Recovering Fast Enough After Surgery

April 7, 2016 Americans with Disabilities Act Claims

Company sued for violating Americans with Disabilities Act

Taking time off from work to recover from a medical procedure is usually no picnic. In addition to the pain and discomfort, many workers are forced to go without pay during their leave.

Employees are often eager to return to their jobs, if for no other reason than to start collecting a paycheck again.

But what happens when a worker needs more time off than the 12 weeks the Family and Medical Leave Act (FMLA) requires? Is the company under any obligation to hold the person’s job for him or her?

When the FMLA and the Americans with Disabilities Act (ADA) collide, employees may have more legal rights than they realize.

Hard return date

Norma Walker was a certified Nursing Assisant (CNA) at Chipola Retirement Center. It could be a physically strenuous job, as part of her job duties included lifting and moving patients.

After years of working as a CNA, Walker began to have pain in one of her shoulders. Her doctor ordered her to have surgery.

In her lawsuit, Walker alleges that she brought in the doctor’s note stating that she required shoulder surgery, and that she would be unable to return to work for a period just slightly longer than six months. The doctor included her exact return date in his letter.

The company claims she only asked for 12 weeks of leave.

In any case, Walker had the surgery and was not able to return to work after 12 weeks. She requested that her leave be extended until the date specified in her doctor’s note.

The company refused to grant the extension. It told Walker she could resign or be fired.

She resigned.

After her recovery period was over, she found another CNA position with a different company. However, that position didn’t pay as much and was less desirable.

Walker spoke to an attorney and sued the company for violating her rights under the ADA.

The company argued that it was only required to offer Walker 12 weeks of leave under the FMLA. It added that Walker never specifically asked for an accommodation under the ADA.

Walker’s attorneys countered that because Walker had a disability under the ADA, the company was required to allow her a reasonable accommodation – whether or not she specifically invoked the ADA.

But the Equal Employment Opportunity Commission has stated that extended leave that does not pose a business hardship can be considered a reasonable accommodation. Walker’s attorneys argued that her request wouldn’t have posed a hardship.

She was on unpaid leave and was not receiving benefits. The company employed many CNAs and turnover was extremely high. Allowing Walker to return to her job when she was able would’ve actually been of benefit to the company, as it would’ve allowed them to fill an open position with an experienced, valued employee who required no training.

The company lost. In its opinion, the court pointed out that the company had to have been “extremely dense” not to understand that Walker was seeking an ADA accommodation.

Walker was awarded back pay. She did not seek reinstatement because she had found another, higher-paying position by the time of the trial.

(The case discussed here is Walker v. NF Chipola, LLC, d/b/a, Nursing Pavillion at Chipola Retirement Center.)

What It Means to You

While coverage under the ADA is determined on a case-by-case basis, it’s important to know that the Act was expanded several years ago to cover a wider range of conditions, including some temporary disabilities.

As we saw here, the ADA also may require employers to relax some of their regular rules and policies if they interfere with what could be considered a reasonable accommodation.

However, because the ADA requires a thorough examination of a person’s unique circumstances, it’s a good idea to speak to an employment law attorney if you believe that your rights under the ADA have been violated.

Email us at or call (267) 273-1054 for a free consultation to find out more about your rights.