Are your policies and practices flexible when it comes to accommodating people with disabilities? Do you have ”no fault” or “automatic” termination policies that call for automatic termination of employment when an employee cannot return to work upon expiration of the employer’s “maximum” medical leave period.?
The ADA requires employers to modify its policies, practices and procedures as a form of reasonable accommodation. If the employee is unable to return to work at the expiration of your leave policy and requests additional leave, you must assess whether continued leave would be a reasonable accommodation or result in undue hardship. And, the duty of reasonable accommodation has no set time period.
The EEOC says these policies violate the ADA requirement that requests for medical leave, including extended leave, be assessed individually on a case-by-case basis. During the last year, the EEOC:
- entered into the largest ADA settlement agreement in history with Sears who agreed to pay $6.2 million to resolve the EEOC’s claim that Sears maintained an inflexible leave policy that called for an employee’s termination if the employee was unable to return to work after exhausting workers’ compensation leave ;
- entered into a $2.2 million settlement agreement with JP Morgan Chase & Co. because its policy permitted only those employees who returned from medical leave within six months to return to their jobs.
“When is enough, enough?” especially when an employee repeatedly asks for additional leave at the end of each period of approved leave. There is no one-size-fits-all answer. Determining whether a leave of absence, whether short or long, would impose an undue hardship is based on facts of the situation and must be evaluated on a case-by-case basis. There is no magic number of days, weeks, or months that makes a leave of absence an undue hardship for an employer. Undue hardship is specific to the employee, the employer, and the specific job. Review your medical leave of absence policies and practices to make that they do not call for a maximum period of leave followed by automatic termination or other adverse action, but rather provide that the duration of medical leave and other requests for accommodation will be determined on a case-by-case basis.