Additional Leave?
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Question
An employee exhausted his 12 weeks of leave under the federal Family and Medical Leave Act (FMLA). He recently provided us with an updated doctor’s note saying he needs to be out of work indefinitely. Are there any other laws requiring us to provide him with additional leave?
Answer
Under the federal Americans with Disabilities Act (ADA), an employee with a disability is entitled to reasonable accommodation, absent undue hardship. Employers should note that the definition of “disability” is construed broadly, in favor of extensive coverage. Under the law, permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee’s disability. The U.S. Equal Employment Opportunity Commission (EEOC) directs that an employer should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave. Thus, providing additional leave to an employee who has exhausted their FMLA leave entitlement may be a form of reasonable accommodation, provided it does not impose an undue hardship on the employer.
That said, although employers may have to grant extended medical leave as a reasonable accommodation under the ADA, they have no obligation to provide leave of indefinite duration. According to the EEOC, indefinite leave is different from leave requests that give an approximate date of return, such as, for example, a doctor’s note saying an employee is expected to return around the beginning of March. If an employee’s approximate date of return turns out to be incorrect, the employer may seek medical documentation to determine whether they can continue providing leave without undue hardship, or whether the request for leave has become one for leave of indefinite duration.
It is important to note that a claim of undue hardship must be based on an individualized assessment of current circumstances and show that a specific reasonable accommodation would cause significant difficulty or expense. The EEOC has outlined a list of factors that a determination of undue hardship should be based on. Given the potential liability under the law, if an employer wishes to deny additional leave to an employee, the employer should consult with legal counsel for assistance in assessing the specific circumstances at hand and determining whether undue hardship exists. Employers should review their state and local laws for any additional requirements that may apply.
