Catching Up

When I started this blog, I thought I’d be writing every day since there is no shortage of California HR in my daily life. I’m now looking shamefully at the date of the last post and realize that I haven’t posted for two whole weeks. It’s amazing how time gets away.

Back to business – I’ve been really puzzled lately over what to do when employees run out of FMLA/CFRA protected leave but provide a note from their doctors stating that they need another 4 or 6 or 8 weeks more. According to the letter of the protected leave laws (both state and federal), the employer can refuse the leave and inform the employee that his/her job is no longer protected and hire someone into the position. That seems easy, yes? It would be if it weren’t for that pesky little thing called the ADA. Many descriptions of the intersection of these laws refer to it as the “two headed monster”. Additionally, once Workers Comp is added into the mix, it becomes “The Bermuda Triangle”. How can employer know when they should extend a leave and when they should terminate for leave exhaustion?

Here’s the basic solution:

FMLA allows for a maximum of 12 work-weeks of unpaid leave in a 12-month period. A qualified individual with a disability would be entitled to more than 12 weeks of unpaid leave as a reasonable accommodation if the leave would not impose an undue hardship on the employer?s business.

The FMLA allows the 12 weeks of leave to be taken intermittently or in the form of a reduced work schedule (for example, a three-day week instead of a five-day week until the 12 weeks are used up). The FMLA also allows the employer to require the employee to transfer to an alternative job with equivalent pay and benefits while the leave is being utilized.

Under the ADA, a qualified individual with a disability may work part-time or take occasional time off so long as it does not impose an undue hardship on the employer. If, or when, it does impose an undue hardship, the employer must attempt to reassign the employee to a vacant equivalent position, and as a last resort, to a vacant lower position so that the leave or reduced schedule could be continued. Of course, the employer and employee are always free to agree on a voluntary transfer to a different position if both parties deem this preferable to accommodating the person in his/her current position. (“Leave Rights under the FMLA and ADA: The Intersection of Two Laws Impacting Employee Leave”, Sheila Dunston, September 2001)

But what constitutes a hardship? If an employer was able to survive without the employee for 12 weeks thusfar, why not another 4 or 6 or 8? You can terminate for exhaustion of leave but such terminations don’t hold up very well in a court of law, particularly if the employee should have been granted further time under the ADA. But how do you know where to draw the line?

You can try to determine whether or not an employee should be granted further leave under the ADA by the ADA definition of a disability, which states:

An impairment is a “disability” under the ADA only if it substantially limits one or more major life activities. An individual must be unable to perform, or be significantly limited in the ability to perform, an activity compared to an average person in the general population.
References: TAM I-2.2(a):

The regulations provide three factors to consider in determining whether a person’s impairment substantially limits a major life activity:
1. its nature and severity;
2. how long it will last or is expected to last;
3. its permanent or long term impact, or expected impact.

The regulations go on to describe various situations that may or may not be considered a disability under the regulations. Again, not always clear cut as an employee may go on leave for one reason, but, for example, may need further time off due to the emotional impact of being in ill-health.

Again, I don’t know the answer here. What I do know is that each situation is unique and it’s our reponsiblity to carefully assess what the employee needs at the time. Make sure to engage in the interactive process to determine what, if any, accommodations (including time off) need to be made and make sure that you document, document, document. You may not decide to offer extra time off to the employee, but you’ve discussed possible solutions with the employee. And that, my friend, is worth it’s weight in attorney’s fees.