Many a company has a policy that says something to the effect of “If you have been on leave for 3 months, six months, one year, etc. your employment will be terminated.” If you are one of those companies you can no longer have that automatic termination policy. Unfortunately this puts a big burden on smaller companies.
The EEOC (Equal Employment Opportunity Commission) has said that having such a policy is a violation of the Americans with Disabilities Act. In their guidance document when asked the question “May an employer apply a “no-fault” leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period?” the response was “No. If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of reasonable accommodation.”
Case by case
Unfortunately there is no one “cut and dried” solution to a leave of absence involving a disability. Each situation has to be evaluated on its particulars. If the company is large enough to have FMLA they under that law may terminate someone who does not return to work. However if the person is on FMLA for a disability then extending beyond that 12 weeks may be seen as a reasonable accommodation. Each case has to be judged on its merits. The factors that have to be examined include:
- The number of employees of the company.
- What the employee does and how important their position is to the operations.
- How much longer the employee is needs to be out on leave.
- Whether the employee’s duties have been, and can continue to be, absorbed by another employee.
- The cost of having another employee fill in.
It is the totality of the circumstances that must be considered and no one factor is the determining one. And every situation may be different.
Steps for HR
There are a number of things HR or management can do to deal effectively with such a case of extended leave. These include:
- Make sure you take the request for extended leave seriously.
- Begin a DOCUMENTED and interactive conversation with the employee to understand the nature of their need for an extended leave.
- Review how the company has handled their absence to date.
- Document all the alternatives that have been considered.
- DOCUMENT the business necessity of rejecting any request for extended leave as an accommodation.
- Involve counsel as needed.
These steps will not save you from being sued or investigated by the EEOC, but it can help you prevail in any such law suit.
This area is more complicated than the space in this blog allows so if you are seeking more guidance you can read the Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act from the EEOC.