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The employer did not reach a conciliation agreement with the EEOC, and the EEOC filed a federal lawsuit in federal court under Title I of the Americans with Disabilities Act of 1990 (“ADA”), alleging that business refused to reasonably accommodate the employee’s disability (Bipolar Disorder) and discriminated against her by terminating her employment because of her disability. Civil Action No. 3:15-cv-03157.

Can I fire an at-will employee during the probationary period if they request leave?

The District Court determined that the EEOC presented sufficient evidence for a reasonable jury to find that, because of her Bipolar Disorder, the employee could not have performed the essential functions of the job without a reasonable accommodation. The court supported this conclusion by referencing the employee’s statements to the business that she needed medication.

The company argued that the employee was not qualified because she needed an indefinite leave of absence, and that there was no evidence that the employee  was ever cleared to return to work.  The federal court rejected this argument, noting that the EEOC presented evidence that would enable a reasonable jury to find that, in the employee’s communications with the employer, she was actually requesting a few days of leave rather than indefinite leave, and that the company terminated her employment before acting on her leave request.  The court explained that an employer may not stymie the interactive process of identifying a reasonable accommodation for an employee’s disability by preemptively terminating the employee before an accommodation can be considered or recommended.

The employee emailed her supervisor again that night, stating that she was able to see the doctor and she needs the next day off of work to have some test done. The employee stated that as long as everything comes back normal she will be back to work in two days.  The next morning, the employee emailed a Human Resources Operations Manager, advising that due to medical conditions she will be out of office for an extended amount of time, and asking what options she had available for leave.

The Human Resources Manager informed the employee that the company could not grant her a leave of absence, and intended to separate her from employment based on her not being able to return to work. The employee explained that she was not asking the employer to leave her position open indefinitely. She stated that she had a follow-up visit with her doctor in two days, and she may be able to return to work in two days or she may need a longer leave. 

The employee filed a charge of discrimination with the EEOC, alleging that the company had denied her a reasonable accommodation for her disability and had discriminated against her on the basis of her disability.

A few months after losing part of its Summary Judgment motion, the employer agreed to pay $25,000 and provide other significant relief to settle a disability discrimination lawsuit brought by the EEOC.

Under the terms of the consent decree settling the case, the employer will pay $25,000 in monetary relief to the former employee and also agreed to post a notice about the settlement, and to provide training for employees on the ADA to include instruction on the specific provisions of the reasonable accommodation process. The training will include an instruction advising managers and supervisors of the potential consequences for violations of the ADA. Additionally, the company agreed to document complaints of disability discrimination and report them to the EEOC!

Florida employers are reminded that one of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is for the EEOC to address emerging and developing issues in equal employment law, including issues involving the ADA

If you need any assistance in determining in addressing an EEOC charge of discrimination concerning your Florida company or if you need guidance in any employment policies, especially those involving disabled applicants or employees, please email the Law Office of David Miklas, P.A. or call us at

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An employer hired an employee as an at-will employee and informed her that her employment would begin with a 90-day probationary period. Two months later the employee was absent from work for two full days, and left early three times, for reasons including illness and registering her daughter at school. The supervisor orally counseled the employee about her absences.

A few weeks later, the employee began to suffer increased panic attacks, a symptom of Bipolar Disorder. That morning, the employee emailed her supervisor that she would be absent from work that day, and possibly the next, to see her psychiatrist because she has been out of meds for her Bipolar and adult ADHD disorders for almost two weeks.  This email was the business’s first notice that the employee had Bipolar Disorder.

The employer filed a Motion for Summary Judgment. The court granted the motion only as to the EEOC’s discrimination claim but denied the motion as to the EEOC’s reasonable accommodation claim. 

Regarding the reasonable accommodation claim, the ADA prohibits discrimination in employment against a qualified individual on the basis of her disability.  Under the ADA, to “discriminate” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.”

The HR manager told the employee that she was in her probationary period, and she was not covered under the FMLA and there was not a medical leave available for employees who were with the company such a short time.  The HR manager advised the employee that the company was terminating her employment.