Health is a precious commodity for everyone. Unfortunately, there are times that health fails us and in those instances, we hope that our employers stand by us while we recover and recuperate. However, this is not always the case.
Employers often think that employees who have exhausted their 12 weeks of leave under the Family and Medical Leave Act of 1993 (FMLA) are not entitled to additional leave time and can be terminated if they cannot return to work immediately. What the employers do not realize is that, even if an employee’s leave is no longer covered by the FMLA or was not covered in the first place, other protections may apply. This includes protections created by the Americans with Disabilities Act (A.D.A.), as amended. The law is intended to protect persons with disabilities.
The U.S. Equal Employment Opportunity Commission (E.E.O.C.) has spoken extensively about this topic. For example, under the resource document (Employer-Provided Leave and the Americans with Disabilities Act) issued by the E.E.O.C. earlier this year, employers are required to provide disability accommodation leave even for disabled employees who have exhausted all FMLA and other required or permitted medical leaves, unless the employer can show undue hardship.
Leave has also been explicitly identified as a “reasonable accommodation” under the A.D.A. in nearly every circuit court across the country. Employers must consider providing unpaid leave as a reasonable accommodation, as long as the leave does not create an undue hardship for the employer. This is true even if the employee has already used up all available leave under the FMLA and even if the employee is not entitled to leave under the employer’s policies. That means that even after FMLA and similar leaves of absence have been exhausted, if an employee is not yet ready to return to work, an employer may not discharge the employee without first considering additional leave as a reasonable accommodation.
If an employee is not entitled to or eligible for FMLA leave under any employer’s leave programs, the employer must then consider providing leave outside of its leave program as a reasonable accommodation. That requires the employer to promptly engage with the employee in an “interactive process” to determine the need for and duration of the leave and whether other (or additional) reasonable accommodations are necessary. An employer has a duty to interact with the employee to determine whether the additional leave being requested is reasonable under the circumstances.
In the recent case of Sharbaugh v. West Haven Manor, LP (2016 U.S. Dist. LEXIS 161264), a federal court in Pennsylvania dismissed the employer’s summary judgment motion and held that the employer had a duty to interact with the employee, Mr. Sharbaugh, after he requested additional time off work and that the employer failed, in bad faith, to assist Mr. Sharbaugh in obtaining a reasonable accommodation. It was found that the employer acted in bad faith by purposefully avoiding interaction with Mr. Sharbaugh that may have clarified Mr. Sharbaugh’s return-to-work date, thereby rendering his requested accommodation reasonable.
If you have an employment law question or issue, the attorneys at Lebau & Neuworth, LLC, stand ready to discuss it with you. Contact us at 888-456-2529 or lebauneuworth.com/contact-us.