Yes, leave can be considered a reasonable accommodation even when not covered by the FMLA

Employees with disabilities could be eligible for leave as a reasonable accommodation.

The intersection of the Americans with Disabilities Act and the Family and Medical Act can be a trying one. There have been numerous cases where courts have ruled that additional leave beyond the 12 weeks permitted by the FMLA would be considered a reasonable accommodation for the individual with the disability. Of course the courts make it clear that unlimited leave is not a reasonable accommodation. But where does leave come in if the employee is not entitled to FMLA, or the company is smaller than 50 employees and not covered by the FMLA?

Reasonable accommodations must be considered

The ADA covers employers that have 15 or more employees. Unlike the FMLA, coverage under the ADA starts on day one of employment. In reality it starts before that as they are being considered for employment, but in that case leave would not be considered a reasonable accommodation. Once an employee starts work they can and should be given the opportunity to take advantage of a reasonable accommodation that will help them perform the essential functions of the job. Most of us think of these reasonable accommodations as things such as back braces or some other such device. However, courts have determined that time off to fully heal from an injury could be considered a reasonable accommodation. You won’t know unless you consider it.

Interactive discussion

Under the ADA, as amended by the ADAAA, an employer must engage in an interactive (meaning you actually have to talk to each other) discussion, that is to be documented. You can talk to the employee’s doctor, with the employee’s permission, to better understand the need of the employee. If from that you learn that a leave with a specified end would allow the employee to function well enough to perform the job, then you might be hard pressed to argue that such a leave would be unreasonable.
Guidance is provided in the document Employer-Provided Leave and the Americans with Disabilities Act. Regardless of the outcome all employers must engage in the interactive discuss process to properly consider the requested accommodation. Whatever the determination is the business needs to be able to defend it reasoning for the decision they have made, especially if they are claiming the accommodation is unreasonable.
Hat tip to attorneys Janine Fletcher and Matthew Luzadder for the inspiration on this post.

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