Conventional wisdom says that when a sick or injured employee asks for time off, you should grant it within reason.
For one, the U.S. Equal Employment Opportunity Commission will tell you that hard-capped leave-of-absence policies violate the Americans with Disabilities Act. The ADA requires that an employer engage employees in an interactive process to determine reasonable accommodations. If an employer imposes a hard cap on leaves, then it has shirked its responsibility to engage in that interactive process. This requirement, however, merely begs the question: How long is too long for an unpaid leave under the ADA?
In analyzing this issue, consider the following three examples.
1. In Robert v. Board of Commissioners of Brown County Kansas, the 10th Circuit Court of Appeals concluded that an indefinite leave of absence is per se unreasonable. Catherine Robert, who worked as a supervisor of released adult offenders, developed a back problem. After a lengthy leave of absence, including 12 weeks under the Family and Medical Leave Act, Robert remained unable to perform all of her duties, such as visiting offenders at their homes or in jail.
She sued for disability discrimination following her termination. In upholding the dismissal of her claim under the ADA, the court focused on the indefinite nature of her leave of absence, and concluded that because the leave request lacked an estimated end date, the request was unreasonable.
2. Recently, the EEOC sued an Oakland, California, hospital for disability discrimination after it denied an extended, unpaid leave of absence to an office worker suffering from breast cancer upon returning from an FMLA leave.
3. In Attiogbe-Tay v. SE Rolling Hills LLC, a Minnesota federal district court concluded that an employer does not have to provide an unpaid leave of absence beyond the FMLA’s 12 weeks to a nurse who, upon returning from knee surgery, temporarily could not perform some the job’s essential functions, including kneeling, squatting and lifting more than 100 pounds. The court concluding that while an “extended medical leave of absence” might be a reasonable accommodation, under the facts of the case it posed an undue hardship on the employer because the company had to pay other nurses overtime, or employ temporary nurses from a staffing agency, to cover in the plaintiff’s absence.
How does one reconcile these examples?
If you are planning to deny an unpaid leave to an employee, understand that these terminations are risky and will draw scrutiny from the EEOC.
An indefinite leave of absence — one from which neither the employee nor his or her doctor can provide a date when the employee can return to performing the essential functions of the position — is per se unreasonable under the ADA.
If you are granting a leave to an employee as an accommodation, your best defense to a potential ADA claim is to open a dialogue with the employee about a return date — and prepare to be flexible.
While an indefinite leave usually will be deemed unreasonable, what is reasonable will depend on the nature of your business and how the employee’s position fits into your organization. You cannot make this determination without talking to the employee, gathering medical information and making an informed decision.
Thus, the issue of how long is too long for an ADA leave of absence will vary from employee to employee, and from leave to leave, and will necessitate a dialogue with the employee to determine how much leave is needed and whether the leave has continued for too long to continue.
If you are planning to deny an unpaid leave to an employee, understand that these terminations are risky and will draw scrutiny from the EEOC. Employers should make sure they have documented (on a case-by-case basis) the following to support a claim of undue hardship, such that a court will not perceive your efforts as a sham to evade an obligation:
- The cost of the accommodation.
- The employer’s overall size, number, composition, structure, and functions of employees, and the financial resources.
- The financial resources of the facility in question, including the number of persons employed, and the effect of the accommodation on expenses, resources and operations.
- The relationship of the facility in question to the overall operations of the employer.
Perhaps the most important takeaway from this discussion is that the FMLA is not the only law that requires an employer to provide an ill employee an unpaid leave of absence.
The recently amended ADA is expansive enough to cover most medical conditions. If most medical conditions are covered as disabilities, then most employees with medical conditions will likely, at some point during their tenure, need a reasonable accommodation. One accommodation that the EEOC considers reasonable is an unpaid leave of absence, even for employers too small to be covered by the FMLA.
If the ADA now covers most employees’ medical issues, and the ADA requires an unpaid leave of absence, hasn’t the ADA swallowed the FMLA, at least as employee medical leaves are concerned?
Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email firstname.lastname@example.org. For more information, contact Hyman at (216) 736-7226 or email@example.com. Follow Hyman on Twitter at @jonhyman.