Employee requests for extended leaves of absence on account of injury or illness are a growing trend. When such requests are denied, more and more employees are suing—and winning when the employer has ended the employment too quickly. This article provides 10 tips concerning extended leaves.
1. FMLA Eligibility
The employee may have initial rights to a leave of absence under the Family and Medical Leave Act (FMLA). To be eligible, a private-sector employee, in most cases, must (1) have been employed for at least 12 months, (2) have worked at least 1,250 hours in the 12 months immediately preceding the leave, and (3) work at a location where the employer has at least 50 employees within 75 miles. When leave is sought based on the employee’s own injury or illness, it must be a “serious health condition.”
2. FMLA Protections
The FMLA generally provides up to 12 weeks of leave in a 12-month period. While FMLA leave need not be paid, the employee may be required to use accrued paid time off during the leave. The employer must continue group health insurance coverage under the same terms and conditions as if the employee had not taken leave. FMLA leave is “job protected” in that the employee must be returned to his or her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.
3. Other Leaves
When the FMLA does not apply, a leave of absence may be granted under a policy maintained by the employer voluntarily. The employee’s eligibility for this leave should be set forth in an employee handbook or another appropriate policy document. This document should also describe the other terms and conditions of the leave.
4. Requests for Extensions
If the employee is unable to return to work on expiration of the FMLA or other leave, he or she may request an extended leave. The Americans with Disabilities Act (ADA) or cognate state law may entitle the employee to more time off, depending on the circumstances. Employers ignore such requests at their peril.
5. ADA Accommodations
The ADA provides certain protections to qualified employees with a “disability”—a term defined broadly. If the employee needs a “reasonable accommodation” to perform the essential functions of the job, then the employer must provide it, unless the requested accommodation would pose an “undue hardship.” Extended leaves intended to facilitate the employee’s return to work have been recognized as a reasonable accommodation in many situations.
6. How Much Is Enough?
No bright-line rule governs this area of the law. Although employers need not provide an indefinite leave, the point at which an extended leave may become an indefinite one—or otherwise impose an undue hardship—is often a matter of interpretation. Courts have upheld extended leaves of various durations, sometimes in excess of a year. The question of how long is long enough depends on the specific facts of the case. An experienced employment attorney should be able to guide you.
7. Undue Hardship Analysis
A requested accommodation poses an undue hardship when it requires “significant difficulty or expense.” Factors that must be considered to determine if this threshold has been crossed include cost, the employer’s size and overall financial resources, the nature of the employer’s operations, the impact of the leave on other employees, and the impact of the leave on the employer’s ability to conduct its business. This requires a specific, case-by-case analysis.
8. Interactive Process
A request for an extended leave should be treated as a request for a reasonable accommodation. The employee does not have to refer to the ADA or applicable state law or use any “magic words.” The employer, in turn, should engage in the “interactive process.” This is a good-faith effort to consider the requested leave, to explore potential alternatives (if applicable), and to determine if an appropriate accommodation can be made without subjecting the employer to undue hardship.
9. Policy Pitfalls
Courts have found “no fault” attendance policies and inflexible maximum-leave policies to violate the ADA. Such policies are viewed as undermining the individualized assessment employers need to make when asked to accommodate a disability. Terminating an employee simply because “time is up” under the company’s leave policy can expose the employer to liability.
10. The Record
Employers should take great care in their communications with an employee seeking an extended leave or other accommodation. Such communications are “discoverable”—that is, obtainable in litigation—so their content, accuracy, and tone are extremely important. It is advisable to craft these communications with the assistance of counsel.
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Properly managing extended leaves requires good judgment, sound risk assessment, and a solid understanding of the governing legal framework. Employers should consult with experienced employment counsel when confronted with requests for extended leaves.