I believe that Ms Smith should be entitled to resume her employment with GM after her doctor’s appointment on November 15th. There are several clauses in both the Americans with Disabilities Act (ADA) and the Families and Medical Leave Act (FMLA) that make Ms Smith eligible for leave, and that protect her from losing her position at General Motors (GM).
Under the ADA, leave applies to employees who work for a company with 15 or more workers, which is presumably the base with a large international company such as GM. According to the ADA, work leave is permissible due to her cognitive impairment, and there is no amount of time set for this type of leave. The employee must provide medical documentation; which Ms Smith appears to have done. She has made every effort to keep her employer up to date with her medical situation. Under the ADA, GM must be able to prove ‘undue hardship’; that the business is suffering due to her absence, and/or experiencing financial hardship. Undue hardship is difficult to prove. The company has five other people who work in her field, so it is unlikely that they are unable to manage their HR workload. Presumably one of these members of staff could be deployed into her position to take the pressure off Ms Gomez. It is unlikely that a large international company like GM could plead financial hardship at the temporary loss of one employee. Also, under the ADA the employer has to avoid “100% healed” policies, which ask that the employee have medical certification that they are fully fit to resume their former duties. In the case of Ms Smith and GM, GM asked for her to provide medical documentation to say that she was “capable of handling her responsibilities”. Therefore, GM have flouted this regulation. Rather, GM should have encouraged Ms Smith to return to work on light duties/duties that were better suited to her capabilities at that time, and/or offered her reduced hours. This way she could have retained her employment with GM, and not have required a medical certificate to do so.

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According to the Family and Medical Leave Act (FMLA), employees are eligible if they have been with the employer for at least 12 months, and worked at least 1,250 hours in the past 12 months. Ms Smith meets these criteria. The FMLA leave applies to employees of companies who employ 50 or more staff in a 75-mile radius of the site, as would be the case with GM. Possibly the most relevant information pertaining to this case, which works is Ms Smith’s favor is this: under the FMLA, workers must have their job left open while they are on leave. Therefore, GM simply do not have the right to fill Ms Smith’s position with another person, based on this clause alone.

Some other information that is pertinent to this case, which work in favor of Ms Smith, are the following:

The fact that Ms Gomez is going on maternity leave should not be cited as a reason as to why the business is experiencing pressure, as the company will have to employ another person to cover her role anyway once she goes on leave, regardless of the situation with Ms Smith.

The fact that Ms Smith’s past performance was ‘satisfactory’ is important. It demonstrates that GM have no issue with her performance, so it is desirable that she return rather than train someone new to undertake her role. She may not have been exemplary but this is not relevant as long as she was doing her job properly, which she was.

It is not Ms Smith’s fault that her doctor was unavailable to assess her prior to November 15, although it would have been possible for the employee to get another specialist to oversee this aspect of her care in a more timely manner. GM could have made mention of this to the employee as a first course of action prior to dismissal. Under the FMLA, the worker must be given at least 15 days to provide medical documentation by their employer. Ms Smith was told on October 17 that she had to return to work, and by October 20th, she was discharged. Ms Smith was not given adequate time to gather the required medical information. It would have been better if GM has given her a date by which to provide this information before giving her a date that she had to return.

It is importnant to note that under the FMLA, 3 month’s leave is given. Ms Smith had taken four months, which would have been five by the time she had her medical appointment. So GM could argue that she had used up all of the time she was allowed to take. However, it would have been reasonable for Ms Smith to assume that this was acceptable to GM to take longer, as she had taken the four months off for her physical therapy without any issues. Also, to reiterate Ms Smith is protected under the ADA, which states that work leave is permissible due to her cognitive impairment, and there is no amount of time set for this type of leave.

To summarize, given the nature of this case study and the facts pertaining to it, in relation to the rules and regulations as stipulated by both the Americans with Disabilities Act and the Family and Medical Leave Act, I believe that Ms Smith has been unfairly dismissed by GM, and that they should negotiate with her the continuation of her employment with them.