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Few areas of employment law cause as much frustration for employers as the lack of a definitive answer to the question of how much leave beyond the Family and Medical Leave Act’s (FMLA’s) 12 weeks and state-law-mandated leave must be provided under the Americans with Disabilities Act (ADA).
“At some point, employers clearly can draw the line, since the courts have made it clear that indefinite leave is not reasonable,” remarked Jeff Nowak, an attorney with Franczek Radelet in Chicago. “So we know there is a line somewhere. The million dollar question is: Where’s that line?”
“Employers looking for their employees to return, or for closure, find little solace in the current state of the law,” Peter Petesch, an attorney with Littler in Washington, D.C., told SHRM Online.
He recommended that employers follow up “in reasonable intervals with inquiries on the individual’s projected return-to-work date,” and document the steps taken to fill in for the absent employee as well as the operational impact of the absence.
“The more times the absent employee keeps extending the estimated return-to-work date, the more the leave takes on an indefinite nature, and the leave accommodation ceases to be reasonable,” Petesch said. “But there is no magic number of extensions that transforms creeping leave into indefinite leave.”
Drawing the Line
“Where additional leave is requested, the employee must be able to show that the additional leave will be effective in helping him return to work, and his physician must be able to provide an estimated return date in the near term,” Nowak added. “If the employer has effectively communicated throughout the interactive process and additional leave requested will not be effective in helping the employee return to work in the near term, the employer is well positioned to say ‘enough is enough.’ ”
Just because an employer has granted extra ADA leave to one employee does not mean it must do the same for every other employee who seeks extra time off. An employer “should take each situation on its own, conducting an individualized assessment of the employee’s ability to perform the essential functions of the position and whether any assistance is needed to perform the job,” Nowak said. So, “I would not view the granting of any particular leave of absence as a precedent that ties your hands in the future. Ultimately, the goal is to help the employee return to work. For some employees, additional leave will be required. For others, [extra] leave of any shape or size simply will not be an option because it is not reasonable and effective in allowing the individual to return to work.”
Put the ball in the employee’s court, recommends Joan Casciari, an attorney with Seyfarth Shaw in Chicago.
“Set up a policy and protocol for requesting ADA accommodations, which includes requesting job-protected leaves for those not eligible for FMLA or who have exhausted FMLA,” she said. “Then put the burden on the employee to affirmatively request more leave as an ADA accommodation, either when leave is initially requested—especially if the employee is not FMLA-eligible—or some time prior to the expiration of the FMLA or other protected leave.”
However, she noted that the Equal Employment Opportunity Commission (EEOC) takes “the position that any employee who is unable to return to work for medical reasons has, in effect, requested an accommodation and does not need to do more. But I don’t think that is correct, and I think having a protocol is permissible and defensible.”
That said, she still thinks an employer should contact an employee to find out his or her expected return-to-work date before taking action, and should also clarify what that employee’s rights are once the FMLA leave has expired.
For years, EEOC opposition to inflexible leave caps limited their use.
But the 10th U.S. Circuit Court of Appeals gave employers with leave caps an encouraging sign on May 29, 2014, when the 10th Circuit upheld a university’s inflexible six-month leave policy. The university was not required to provide an employee undergoing cancer treatment with more than six months’ medical leave as a reasonable accommodation under the Rehabilitation Act, which the ADA was based on. The decision stands in contrast to other court rulings striking down “inflexible leave” policies. The 10th Circuit includes Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.
Nowak recommends removing references to automatic termination provisions from leave cap policies, “as they tend to create more headaches when faced with an EEOC investigation.”
Despite the 10th Circuit ruling, “the EEOC continues to target employers with maximum leave policies, finding them to be invalid, and securing settlements on behalf of employees who were denied leave or who were terminated or otherwise suffered an adverse action as a result of not being able to return to work at the conclusion of the employer’s maximum leave policy,” noted Linda Hollinshead, an attorney with Duane Morris in Philadelphia.
She added, “If an employer has such a policy on the books, at a minimum an employer must include in its policy an affirmation that even if an employee has exhausted the maximum leave under the policy, [the employee] may be entitled to additional leave as a reasonable accommodation, and the mechanism by which an employee can seek such additional leave should be clearly identified.”
“I recommend that when additional leave is provided, the employer memorialize to the employee that the offer of leave is approved taking into account the operational needs of the employer at that time,” Hollinshead said. “This may help in future requests for additional leave for the same employee or from other employees where the operational demands are different and may make these other leave requests more burdensome to accommodate.”
However, outside the 10th Circuit, the troublesome fact about ADA leave for employers remains: “There is no fixed line after which an employer may automatically end leave,” she cautioned.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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