Monday, March 16, 2015

Is An Employee Entitled to Additional Leave if They Can't Return at the Expiration of FMLA?

Last week we talked about whether an employee would be eligible for unemployment in Illinois if he or she has exhausted all of their available leave, including their FMLA leave, and cannot return to work or can only return part time. In many cases that employee will be eligible for either full or partial unemployment benefits.

Let’s look at a similar scenario from a different perspective. Often times an employee has a serious medical condition which requires them to exhaust all of their available leave, including FMLA,  and at the end of that leave the employee is not quite ready to return to work, or not quite ready to return full time. In fact, let’s say that the employee has a note from their doctor that says that they need an additional four or five weeks off of work before they can return. What options does an employer have at that point?

Many employers believe that once an employee has exhausted all leave entitlements, including FMLA, that they no longer have to hold the employee’s job for him or her and they may fill that job with someone else at that point. This is true as far as it goes, but this only addresses the rights of an employer under the FMLA. What about the ADA?

Although the EEOC has not officially issued a guidance on the subject, the agency has made it clear that it interprets the ADA as requiring, under certain circumstances, additional leave time after expiration of FMLA leave, as a reasonable accommodation under the ADA.

This is not to say that an employer has to hold a job open indefinitely, but it does remind employers of the need to undertake the ADA’s interactive process with employees who cannot immediately return from FMLA leave.

First of all, the employee has to have a medical condition which is covered by the ADA. Frankly, many conditions which require an employee to be off of work for 12 weeks and beyond might also qualify for ADA protection. For instance, the ADA does not extend to those employees who utilized FMLA to care for a family member.

Secondly, the employee needs to provide information, which is as definitive as possible, as to when they can return to work and if that return is without restrictions. Since employers do not have to hold a position open indefinitely, they have the right to know the expected length of time the employee may require accommodation. This is necessary to know to determine whether a reasonable accommodation exists.

Assuming the employee’s treatment provider identifies a date in the not too distant future on which the employee can return, the employer should next look at workflow in the employee’s absence. This is the crux of the interactive process in this situation. While the employer has a duty to provide a reasonable accommodation, which in this case is a few more weeks of leave, the flip side to that is that the employer is relieved of that obligation if the accommodation causes an undue hardship. And, if the employer is going to claim an undue hardship, it better have some facts ready to support that conclusion.

Here are some issues to consider in determining whether an undue hardship exists:

1. Have other people absorbed the absent employee’s work while they were on leave? More importantly, has that cost the employer money in hiring a temp or paying overtime?
2. If the employer has had to pay extra money to cover the work of the absent employee, how much was that and how does it compare to usual overtime or contracted work?
3. Has the employer had to forego or postpone other business initiatives because they were shorthanded or had to divert funds in covering the cost of an absent employee?
4. Have other employees suffered by the absence of a worker?  As previously mentioned, did they have to work overtime, or more than usual overtime? Has morale suffered from additional work responsibilities?
5. Can the employer document this beyond anecdotal or unsubstantiated evidence?

The same analysis applies whether the employee wants temporarily reduced hours or additional leave. Whatever the conclusion by the employer, it is important to note that an inability to return promptly at the expiration of FMLA leave does not always relieve the employer from further obligations toward that employee. Always analyze whether additional leave might be a reasonable accommodation under the particular circumstances.