Obligation To Provide Medical Leave as a Reasonable Accommodation
The following article was first posted by Carmody Torrance Sandak & Hennessey LLP. It is reposted here with permission.
The federal and Connecticut Family and Medical Leave acts provide clear requirements for how much job-protected leave a covered employer must provide to its eligible employees.
That is, eligible employees are generally entitled to 12 weeks of job-protected leave over a 12-month period, plus an additional two weeks of leave under the Connecticut FMLA for a serious health condition resulting in incapacity during pregnancy.
But does an employer have any obligation to provide a medical leave to an employee who is not eligible for leave under the federal or Connecticut FMLAs?
For example, does an employer have to provide job-protected medical leave to an employee who has been employed less than three months or to an employee who has exhausted their available FMLA leave?
The federal Americans with Disabilities Act and the Connecticut Fair Employment Practices Act require employers to provide a reasonable accommodation to employees with a covered disability.
The Equal Employment Opportunity Commission and courts have held that a medical leave can be a reasonable accommodation.
Therefore, an employer may be required to provide an employee a medical leave of absence even if the employee is not eligible for FMLA leave or has exhausted their FMLA time.
The question then becomes, how much time off is an employer required to provide?
Unlike the federal and Connecticut FMLAs, there is no bright line rule on how much leave an employer must provide except that an employer is not required to provide an indefinite leave of absence.
If an employee requests a definite leave of absence, the question of how much leave an employer must provide depends on the facts and circumstances.
This blurry answer, coupled with the fact that employers may have to provide a medical leave of absence beyond what the FMLA already requires, is understandably frustrating for employers.
However, there are some tips and guidelines for managing these situations:
- Request medical certification to support the need for medical leave and the expected duration
- Determine whether reasonable accommodations can be provided that would eliminate the need for leave
- Fairly evaluate whether the amount of leave can be reasonably accommodated
— Consider not only the anticipated length of the medical leave but also factors such as whether there are other employees who work in the same job classification, thereby making it easier to assign the work of the absent employee; whether the employer can hire a temporary employee to fill the gap; the length of time that it would take to fill the employee’s position (if it would take a comparable amount of time to replace the employee as it would to grant the leave, then the employer should probably grant the leave); how much leave the employer has provided in other circumstances; and whether the leave of absence truly creates an undue hardship for the business.
- Communicate with the employee about the leave including options for possibly working on a reduced schedule and confirmation of the expected return to work date
- If the employee’s physician asks for repeated extensions of the return-to-work date, then this could amount to a de facto request for an indefinite leave, which likely is not reasonable.
Employers should remember that when an employee asks for a reasonable accommodation, the ADA expects employers and employees to engage in an interactive process to discuss the requested accommodation.
Therefore, employers should not automatically reject a medical leave request because, for example, the employee exhausted their FMLA leave time or is not eligible for FMLA.
Instead, the employer should begin a dialogue with the employee about what the employer might be able to reasonably accommodate.
About the author: Nick Zaino is a partner at Carmody Torrance Sandak & Hennessey LLP and the firm’s business services group co-practice group leader. His practice focuses on labor and employment law.
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