Many employers allow their employees to take unpaid medical leave beyond their FMLA entitlement, but only up to a certain cut off, such as 30 or 90 days. Other employers will only allow their employees to take unpaid leave for the length of time allowed by the FMLA, and will then automatically terminate employment when the employee’s FMLA leave entitlement has been exhausted. According to the Equal Employment Opportunity Commission (“EEOC”), and some courts, these policies are unlawful.
EEOC’s position is based on section 102 of the ADA which requires an employer to provide “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 USC § 12112(b)(5)(A). EEOC interprets this provision as allowing employees to take leaves of absence for whatever time is needed, provided that the leave does not cause an “undue hardship.” See also Cleveland v Federal Express Corp., 2003 U.S. App. LEXIS 24786 (6th Cir 2003) (interpreting the ADA as not providing any “bright-line” cut off for determining how much leave must be granted). EEOC also takes the position that the employee is entitled to be reinstated to the same position, once the employee is able to return to work. Thus, under EEOC’s interpretation, it is not enough to provide the leave of absence that is required under the FMLA, nor is it enough to continue the employee’s “employment status” after the employee has exhausted his/her FMLA leave, and then reinstate the employee to whatever job may be available when the employee is able to return. Unless it would be an undue hardship, the employer is required to “hold” the employee’s job open, for whatever period of time the employee is requesting. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship, No 915.002, Question No. 18 (Oct. 17, 2002).
If an employee develops a disability that would restrict the employee from performing the essential functions of the job, the first step is to consider whether an accommodation could be made that would allow the employee to remain in his or her present job. If no such accommodation is possible, the next step is to determine whether another job is available that would be within the scope of the employee’s restrictions. If no such job is available, the last step is to offer the employee an opportunity to take a leave of absence. In determining how much leave to allow, the employer must make a “case-by-case” assessment, taking into consideration all of the relevant circumstances. An employer is not required, however, to grant an “indefinite” leave or grant an endless number of extensions. The employee must provide “some idea” as to when he or she will be able to return, and must demonstrate that he or she will eventually be able to return. Peyton v. Fred’s Stores of Arkansas, 561 F.3d 900 (8th Cir. 2009).
What does this mean for you? First, you need to review your leave of absence policy. If you have a fixed cut off, you should amend the policy to indicate that the amount of leave will be determined on a case-by-case basis, depending on the circumstances of each case. If you wish to have a fixed cut off, you should indicate that extensions are available beyond the cut off, and will be considered on a case-by-case basis. Second, you need to develop a set of forms to be used when an employee requests a leave of absence, beyond his or her FMLA entitlement. These would include a non-FMLA leave of absence request form and a checklist or set of guidelines to be used in determining whether a particular request would constitute an “undue hardship.” The checklist may vary depending on the type of work your company does and the size of your company, but would generally include things such as: (a) the amount of leave that is being requested; (b) the likelihood of the employee being able to return as of that date; (c) whether the request for leave is supported by adequate medical documentation; (d) the nature of the employee’s job and job duties; and (e) the amount of disruption that would be caused by holding the job open, including whether the job duties can be reallocated to other employees, the ability to fill the position with individuals from a temporary agency, and the cost of doing so. Generally speaking, the greater level of skill required to perform the job and the greater importance of the job, the less likely it is that the job can be held open for any significant period of time. Third, you need to communicate your policies and forms to the persons who will be responsible for making leave of absence decisions. In smaller companies, with limited numbers of departments, this will be relatively easy. In larger organizations, with multiple departments and multiple sites, this can be more challenging. Fourth, you need to communicate your policies to your employees, as that will shift the burden to them to initiate the leave of absence process, and provide the information needed to evaluate the request. Any employee who fails to make a request or fails to provide information needed to evaluate the request, will be hard-pressed to claim that his/her ADA rights have been violated.