An employer has to pay close attention when it has an employee who is protected by both the ADA and FMLA. Specifically, employers run into the issue of whether to grant some amount of additional leave to employees under the ADA when an employee with a medical condition that is a disability (ADA) and a serious health condition (FMLA) runs out of FMLA leave. A reasonable accommodation under the ADA can be a variety of things, including some amount of extra leave time. The big question is this—how much more time is unreasonable?
Most recently, in Severson v. Heartland Woodcraft, Inc., No. 15-3754 (Sept. 20, 2017), the Seventh Circuit came across this question, holding that a multimonth leave of absence on top of FMLA leave is beyond the scope of a reasonable accommodation under the ADA. In this case, an employee took a 12-week medical leave under the FMLA. The day the employee’s FMLA leave was to be exhausted, he underwent back surgery, which required that he remain off of work for another two or three months. As a result, the employee asked to continue his medical leave even though his FMLA leave was exhausted. His request was denied and he was terminated, but he was invited to reapply when he was medically cleared to work. About three months later, the employee was cleared to resume work, but he did not reapply. Instead, he sued his employer alleging that he had been discriminated against in violation of the ADA, because his employer failed to provide a reasonable accommodation. Although the employee pointed to three possible accommodations, the court centered most of its discussion on the employee’s requested accommodation of a multimonth leave of absence following the exhaustion of his FMLA leave. Focusing on the notion that a reasonable accommodation is an accommodation that allows a disabled employee to perform the essential functions of the employment position, the court decided that a multimonth absence would result in an employee not being able to perform the essential functions of the employment position. Although the court eliminated the possibility of a multimonth leave of absence, it left open the possibility that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances. Based on this case, it is apparent that, when an employee requests additional leave on top of FMLA leave as a reasonable accommodation under the ADA, employers have to determine whether the extra leave would be a reasonable accommodation.
In addition, the EEOC and Code of Federal Regulations provide something else to take into consideration: whether the employee’s requested leave of absence—in addition to the employee’s exhausted FMLA leave and assuming it is “reasonable” —is an undue hardship on the operation of an employer’s business. The Code of Federal Regulations lays out the factors for employers to consider, with some of the important ones being: (a) the nature and net cost of the requested leave, taking into consideration the availability of tax credits and deductions, and/or outside funding, (b) the overall financial resources of the employer’s business, the number of persons employed, and the effect on expenses and resources, and (c) the impact of the leave of absence on the operation of the employer’s business, including the impact on the ability of other employees to perform their duties and the impact on the business’s ability to conduct business. Basically, an employer has to consider whether the absence of that employee will result in overworking other employees having to cover for that employee, whether it can afford to leave the employee’s position vacant or hire a temporary worker while the employee is on leave, and whether the productivity of the employer’s business will take a hit because of the employee’s absence.
Based on the discussion above, here are some things to keep in mind when determining whether to grant leave as a reasonable accommodation under the ADA after that employee has exhausted their leave under the FMLA:
(1) Make sure to stay in contact with the employee during his or her FMLA leave and stay updated on his or her plans to return to work.
(2) Consider informing the employee when his or her FMLA leave is to be exhausted.
(3) When the employee exhausts his or her FMLA leave and requests additional leave under the ADA as a reasonable accommodation, be sure to engage in the interactive process with the employee to see if that is the right solution. Remember that employers are not required to grant the specific accommodation requested by an employee, just a reasonable one. There may be another solution like restructuring the employee’s job or allowing a part-time or modified work schedule.
(4) Finally, be prepared to document the reasons and articulate to the employee why the employee’s requested leave is being denied if that is the ultimate decision. That means, if the requested leave poses an undue hardship, be sure to articulate the negative effects it has on the business. If the requested leave is not a reasonable accommodation, be sure to articulate why the leave will not allow the employee to perform the essential functions of their job.