Posted & Noted. Sightings from the Blogosphere

• Pages: 20-21
• Date: 01 January 2026
• Published date: 01 January 2026
• Subject Matter: Civil Law

Published in Litigation News Volume 51, Num ber 2, Winter 202 6. © 2026 by the Amer ican Bar Ass ociation. Rep roduced with pe rmission. A ll rights reser ved. This info rmation or any po rtion thereof

may not be copied o r disseminated i n any form or by any means o r stored in an elec tronic databas e or retrieval system w ithout the expres s written consen t of the American Ba r Association .

Don’t Overlook

the ADA

It is a common misconception that nothing pre-

vents an employer from removing an employee after

they have exhausted their leave under the Family

and Medical Leave Act (FMLA). Even major news publications can get it wrong, accord-

ing to Ohio Employer Law Blog’s Jon Hyman. One paper, covering the termination of

Cli Kaplan after 16 years with Beechwood Sales & Service, explained that Kaplan took

unpaid medical leave to undergo chemotherapy for his diagnosed stage 4 esophageal

cancer. When he wasn’t ready to return at the end of 12 weeks, his employer summar-

ily f‌ired him without severance or discussion. The paper concluded, “‘Although unfortu-

nate, Kaplan’s f‌iring was likely legal…. No laws prevent an employer from terminating an

employee once their FMLA expires, regardless of the severity of their disability.’” Not so

fast, Hyman corrects. Where the FMLA ends, the Americans with Disabilities Act (ADA)

may pick up: “Too many employers treat FMLA like a hard stop. Twelve weeks are up, the

protection’s gone, and that’s the end of the story. But it’s not the end, at least, not if the

employee’s medical condition qualif‌ies as an ADA-disability (and stage 4 cancer certainly

does).” According to Hyman, the ADA requires employers to engage in the interactive

process to determine if a reasonable accommodation can be made, which should always

include consideration of a short and f‌inite additional period of unpaid leave. While em-

ployers are not required to provide indef‌inite leave, they should at least consider reason-

able requests and document their eorts. As Hyman stresses, “[t]he FMLA is the f‌loor,

not the ceiling.”

Establish Protocol to Combat Voice Cloning

Identities remain the most common attack vector, according

to cybersecurity experts, which may present as someone pre-

tending to be your client. Ethical Ground’s Michael Kennedy

identif‌ies voice cloning, AI-generated digital voice simula-

tion, as a rising identity vector threat. While the technology

is not new, it has recently become

much more accessible to the pub-

lic since being released on OpenAI.

What should a lawyer do when

faced with these advancing digi-

tal threats? One solution, accord-

ing to Kennedy, is to go analog.

Establish unique code words to

verify client identity during audio

and video communications, before

sensitive f‌inancial or conf‌idential information is shared.

Immediately terminate a call if a client fails to provide the

code word when asked, and if they claim to have forgotten

the code word, require them to come to your oce to reset

© khaled Ahmed /iStock/Getty I mages Plus via Get ty Images; ©Pavl o Stavnichuk/iSt ock/Getty Imag es Plus via Getty Im ages

it. Update code words over a lengthy representation, use dif-

ferent code words for dierent matters, and never say code

words aloud where they may be overheard. Is there an ethical

obligation for attorneys to use code words with their clients?

No, but Kennedy points out three ethical duties that could be

implicated by a lawyer’s failure to

put in place a client authentica-

tion practice: 1) duty to provide

competent representation, which

includes understanding the risks

and benef‌its of relevant technol-

ogy; 2) duty to act reasonably to

safeguard client property; and

3) duty to take reasonable mea-

sures to protect against the inad-

vertent disclosure of or unauthorized access to information

relating to the representation of a client. While low tech,

establishing a client code word protocol is eective and “a

better plan than hoping it never happens to you.”

WINTER 202 6 • VOL. 51 NO. 2

20 | ABA LITIGATION SECTIO N

POSTED& NOTED

SIGHTINGS FROM TH E BLOGOSPHERE