If I had to rank questions I get from clients in order of frequency, questions on medical leaves would be near, if not at the top of, the list. These questions usually take the form of, "Sally has been out of work on a medical leave for a few weeks (or months), and tells us she needs to be out for a few more. We need to get her work done. Can't we just replace her and move on?" The easy answer, whether or not you are covered by, or the employee is eligible under, the FMLA, is a big fat "no."
Regardless of the FMLA, the ADA will require that you consider, and likely grant, an unpaid leave of absence as a reasonable accommodation for a disability. How long is too long? Bimberg v. Elkton-Pigeon-Bay Port Laker Schools (6th Cir. 1/17/12) [pdf] provides some guidance.
Cynthia Bimberg took an unpaid leave of absence from her teaching position to care for her husband, diagnosed with metastasized melanoma. The employer granted her 12 weeks of leave under the FMLA, extended that leave by 6 months until the end of the school year, and again extended it to the one-year anniversary date of her leave. When she then failed to return to work, the school district terminated her employment.
In affirming the decision dismissing Bimberg's ADA lawsuit, the 6th Circuit commented on the duration of her leave in relation to the legal merits of her discrimination claim:
The alleged factual dispute concerns Bimberg's insistence that her year of unpaid leave ended on January 4, 2010, not on December 18, 2009. But Bimberg conceded in her deposition testimony that she would not have returned to work in January 2010 in any event, because she could not leave her terminally ill husband in Houston. Indeed, she did not return to Michigan permanently until a week after his death on February 11, 2010….
It is apparent that Cynthia Bimberg was motivated by the hope that Laker Schools would relent and, on humanitarian grounds, allow her to take what, from their point of view, constituted an indefinite leave. The school district's failure to do so clearly did not constitute a violation of the ADA.
What should you take away from this case?
- An indefinite leave of absence—one from which neither the employee nor his or her doctor can provide a date upon which the employee can return to performing the essential functions of the position—is per se unreasonable under the ADA.
- You must consider a finite unpaid leave as an accommodation. Even finite leaves, however, can reach a point that tips the leave from reasonable to unreasonable.
- If you are granting a leave to an employee as an accommodation, your best defense to a potential ADA claim is to have an open dialogue with the employee about a return date, and prepare to be flexible (to a point). 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 about what works best for your company. Then, when the employee asks for "one more extension" to his or her leave of absence, no one will fault you as an unreasonable ogre if you decline.