FMLA and ADA Defense: Employer Guide to Handling and Defending Claims

Employers are usually faced with FMLA or ADA claims once the company has notice that a medical condition affects an employee’s attendance or job duties and the response does not line up with what the two laws require. Employees tend to bring claims when the company denies leave that qualifies under FMLA or applies attendance rules to protected time. Employees also bring claims when managers ignore medical restrictions that call for adjustments and still hold employees to the same duties or performance standards.

Employees Typically Bring FMLA Claims When:

• Employers discipline or terminate an employee for excessive absences when attendance reports treat FMLA leave as unexcused absences.

• HR or a manager receives a written request for medical leave and does not send a clear answer before the requested start date, or sends a denial that does not explain how FMLA eligibility rules or the medical information led to that decision.

• Employers refuse to return an employee to the same or an equivalent position after approved FMLA leave and the record does not point to a legitimate business reason.

Employees Typically Bring ADA Claims When:

• Managers terminate an employee shortly after the employee asks for extra time away from work or a change in duties tied to a medical condition, and personnel records show no prior performance or conduct problems that would explain ending employment at that point.

• Employers refuse a change tied to medical limits, for example a lower lifting requirement or a different schedule, and no one documents which options were considered or why the final plan made sense for the work that needed to be done.

• Employers tell an employee that they cannot return to work until they produce a doctor’s note clearing them for full duty with no restrictions, and the file contains no discussion about what parts of the job the employee still can do with limits or whether any adjustments would allow a return.

First Actions When an Employee Raises a Claim Sharing the Claim

With Counsel and Organizing the Record

Most of the time, employers find out an employee has filed an FMLA or ADA claim when a letter arrives from a government agency or from the employee’s lawyer. When presented with an FMLA or ADA claim, employers should give employment counsel the agency charge or demand letter along with the documents tied to the decision the employee is challenging so that counsel can understand which employer decision gave rise to the claim and review the reasons the employer recorded at the time. Employers should then gather the attendance policy, any FMLA or other leave policy, the employee’s job description, and recent evaluations in one place so counsel can compare those standards with the actions under review and prepare a response based on the full record.

Coordinating the Response and Protecting the Existing File

Next, employers should select one HR or management contact to work with counsel so the claim is handled through one consistent point of communication to reduce the chance that different supervisors give conflicting explanations about why the disputed decision was made. If the employer was already considering discipline or a job change tied to the attendance issues or work limits at the center of the claim, the employer should hold off while counsel reviews the file and confirms that written performance or conduct records support it and predate the claim. Employers should also instruct managers and IT staff to preserve emails and chat messages tied to leave requests or work restrictions, because routine deletion settings can remove information an investigator expects to see.

How Our Employer Defense Lawyers Support the Claim

Reviewing the Claim and the Employer’s File

Employer defense lawyers start by reading the agency charge or demand letter alongside the policies and documents that relate directly to the decision at issue. They then identify the exact action the employee is challenging and the date it occurred, and gather the records management used when it made that decision, like attendance entries and performance notes that were cited at the time.

Addressing Gaps in Documentation

Next, counsel compares the employee’s description of events to the documents in the file and notes any places where the written history does not line up with what managers recorded about the decision. When the file skips key steps, counsel asks for missing records, including prior performance write-ups or emails where the employee requested leave or described work restrictions, so the history leading up to the decision appears in the file before any response goes to an agency or to the employee’s lawyer.

Managing Communications About the Claim

Counsel then takes over direct communication about the claim so supervisors and managers do not send informal replies that later appear as evidence. Lawyers draft position statements for agencies or written responses to demand letters and attach records that explain how the employer applied its policies under FMLA and ADA in the disputed decision.

Developing a Defense Strategy

The defense team then meets with the employer’s decision-makers to explain how the claim looks under FMLA and ADA based on the current record. Counsel points out where the documents support the employer’s actions and where gaps or inconsistencies could create risk. From there, counsel recommends either continuing to contest the claim or opening settlement discussions.

Preparing Decision-Makers and Witnesses

When a claim moves beyond the initial investigation, employer defense lawyers prepare the employer’s decision-makers and the HR contacts who handled the disputed events for agency interviews and giving testimony. Lawyers review the documents with each person so verbal explanations will match the written record and reflect what information the employer relied on at the time of the decision. Their preparation focuses on preventing witnesses from making statements that conflict with the written file and helping each person describe the timeline in a clear way that supports the employer’s position.

FMLA Defense Strategies

FMLA claims tend to focus on four kinds of employer decisions. First, employees allege that an attendance-based warning or termination counted FMLA days as unexcused absences. Second, employees contest denials of FMLA leave or situations where the employer never gives a clear decision after a leave request. Third, employees challenge outcomes where a return from approved FMLA leave leads to a different job with lower pay or reduced responsibilities instead of a truly equivalent role. Last, employees dispute decisions that treat them as not FMLA-eligible or not covered when their work history and worksite show otherwise.

Discipline or Termination Based on Attendance Records That Treat FMLA Leave as Unexcused Time

Employees pursue FMLA claims over attendance discipline when an employer takes disciplinary action for “excessive absences” and the attendance record mixes FMLA leave with unexcused time. In an attendance-based FMLA claim, the employee’s position is that protected leave influenced the employer’s decision because FMLA days appeared in the total number of absences used to justify the discipline.

Employers should respond to an attendance-based FMLA claim by producing records that explicitly mark FMLA dates as protected and show that only non-protected absences formed the basis for the disciplinary action. A written attendance policy stating that FMLA leave does not count toward absence-based discipline, supported by evidence that the employer followed that policy in practice, strengthens that defense.

Denied or Mishandled Leave Requests

Employees pursue FMLA claims over denied or mishandled leave requests when they ask for FMLA leave for the birth of a child or for a serious health condition affecting them or a covered family member and the employer either refuses to approve FMLA leave or never gives a clear decision before the requested start date. In denied-leave FMLA claims, the employee’s position is that they met FMLA eligibility rules, described a covered reason, and followed the employer’s process, yet the company treated the time as ordinary leave or as an unexcused absence.

Employer Responses to Denied-Leave FMLA Claims

Employers should respond to a denied-leave FMLA claim by pointing either to records that show the employee did not qualify for FMLA at the time of the request or to documentation that the employee did not complete required FMLA steps under the employer’s policy. Examples of situations when employees do not follow employer FMLA policies:

• When an employee does not request leave using the prescribed method of communication

• When an employee does not return a medical certification requested by the employer

When employers clearly document eligibility decisions and policy steps, it gives them a straightforward way to explain why the denial followed FMLA rules instead of punishing the employee for asking for leave.

Failure to Restore the Same or an Equivalent Position

Employees pursue FMLA claims over reinstatement when they return from approved FMLA leave and the employer either places them in a lower-responsibility or lower-paid role or refuses to bring them back at all. In a reinstatement claim, the employee argues that FMLA required a return to the prior position or, if that position no longer existed, to a job that aligns with the old one in concrete terms like rate of pay and level of responsibility.

Employers should respond to a reinstatement-related FMLA claim by comparing the pre-leave and post-leave positions with records that show exactly what changed. Helpful records include written job descriptions for each role and payroll records that show pay before and after leave. When the work schedule changes, employers can use scheduling records and business planning documents to show that any shift or hours change followed a documented business need identified before the employee took leave rather than a reaction to the employee’s use of FMLA.

Eligibility and Coverage Defenses

Employees pursue FMLA claims over eligibility when an employer refuses FMLA leave on the ground that the employee is not eligible or not covered. In an eligibility claim, the employee argues that the company misapplied FMLA rules about length of service or miscounted hours worked in the twelve months before the request.

Employers should respond to an eligibility-related FMLA claim by walking through the FMLA eligibility and coverage test with records that support each step, including:

• HR records that show the hire date and any breaks in service so counsel can measure how long the employee worked for the company before the request.

• Timekeeping reports that set out total hours worked in the twelve-month period the employer uses for FMLA calculations.

• Staffing lists for the worksite that directs the employee’s work, which show how many employees worked there when the employee requested leave and allow counsel to apply FMLA coverage rules.

When an eligibility and coverage analysis shows the employee did not meet FMLA thresholds, the employer can defend the decision to refuse FMLA leave as a correct application of the statute, rather than an effort to avoid protected leave.

Preventative Actions to Reduce Claims

When employers use a consistent, documented process for managing FMLA and ADA requests, they reduce the chance that disputes will grow into formal claims and they create a record defense counsel can rely on later. Employers should develop clear habits around who handles requests and how they make decisions, along with where those decisions are recorded to show that actions followed FMLA and ADA rules instead of ad-hoc judgment.

Read our articles, “FMLA Checklist for Employers” and “ADA Reasonable Accommodation Checklist for Employers” and for tips on managing FMLA and ADA requests.

Helpful preventative steps for employers include:

• Keep leave and attendance policies clear and accessible. Employers should give written leave and attendance policies to every employee at hire and reinforce those policies in manager training. Employees should also be able to access the policies in a handbook or HR portal the company keeps up to date.

• Document performance issues before any dispute. Supervisors should record performance or conduct issues with dates and short factual notes during normal operations. A record that predates any leave or accommodation request shows that later discipline rests on job issues rather than the employee’s use of FMLA or ADA rights.

• Direct health-related leave and duty issues to HR. Managers and supervisors should route any request that links time away from work or changes in duties to a medical issue to HR. HR staff know FMLA and ADA rules, so routing requests to them keeps eligibility and documentation decisions in capable hands.

• Code FMLA time correctly in attendance systems. Attendance systems should label approved FMLA days as protected entries instead of generic absences. Before issuing discipline for attendance, HR can review the record and remove protected entries from any absence total used to make a decision.

• Record how the employer handled ADA work restrictions. HR should keep brief notes from meetings where employees report medical limits and where the need for possible accommodations are discussed. Notes from those meetings can demonstrate which options the employer considered and why a particular plan was chosen in lieu of others.

Retaining Counsel for FMLA and ADA Claims Defense

Employers who receive an agency charge or demand letter about FMLA or ADA issues should counsel from an experienced employer defense attorney before anyone at the company responds. Our team reviews the charge together with the records tied to the dispute, including attendance and leave records for FMLA decisions and accommodation files and emails about work limits for ADA decisions, then gives direct, case-specific guidance on what to do next.

For help assessing risk and planning your response, reach out to the national labor and employment practice group at Conn Maciel Carey, LLP. We have decades of experience handling FMLA and ADA claims for employers across industries and in agency and court proceedings.

This article is for informational purposes only and does not constitute legal advice. While we strive to ensure accuracy, laws and regulations may change, and unintended errors may occur. This content may not address every aspect of the relevant legal requirements. For guidance on your specific situation, consult your attorney.