Reasonable accommodation can require additional leave

Reasonable accommodations for a disabled employee can include paid time off or unpaid time off. In fact, an employee who is disabled should not be automatically terminated once she’s exhausted all leave available. That’s true whether she’s a new employee who hasn’t earned leave or an employee out of paid or unpaid leave. Has she used all eligible FMLA leave? Taken all time in her Paid Time Off (PTO) bank? Used every bit of earned time off for vacation, sick or personal leave? It doesn’t matter. You may still owe her more leave as a reasonable accommodation.

Basic requirements for disabled workers: Managing an employee who is ill or injured can be one of the most challenging tasks employers face. Employers must know all federal, state and local leave laws. Among these, the first to analyze is the federal Americans With Disabilities Act (ADA).

The ADA requires employers to provide qualified individuals with disabilities reasonable accommodation to perform their job’s essential functions. Accommodations may range from job redesigns to wide array of adaptive technologies. Sometimes, disabled employees need a work schedule change to accommodate late arrivals, medical appointments or even transportation. That’s where time off comes into play. For example, even a new disabled employee is eligible for unpaid time off as a reasonable accommodation. Employers can’t simply declare the disabled worker can’t take time off because he hasn’t earned time off yet.

First, consider the FMLA

When an employee requests time off, you must determine whether the Family and Medical Leave Act (FMLA) covers the employee. The FMLA covers employers with 50 or more employees within a 75-mile radius. The employee must also have worked for the company for at least one year and 1250 hours. Employees are eligible for up to twelve weeks of unpaid leave for their own serious health condition. Leave is also available to care for an immediate family member with a serious health condition, among other eligibility reasons.

FMLA leave is generally unpaid. However, employers may require employees to substitute any accrued paid leave for the unpaid leave. Employers must spell out the rules for paid time off in their FMLA policy. Those rules must apply equally to all employees.

A disabled employee likely has a serious health condition as the FMLA defines it. However, not every FMLA serious health condition is a disability under the ADA. A serious health condition is one that requires “inpatient care or continuing treatment by a health care provider.” The condition can be any “illness, injury, impairment, or physical or mental condition.”

Temporary medical conditions may be serious health conditions, but not disabilities because of their temporary nature. You should assume that a disability is a serious health condition under the FMLA. Time off for related medical appointments, flareups and treatment therefore likely is FMLA leave. If the disabled worker meets FMLA leave eligibility, using FMLA is a reasonable accommodation. But that’s not the end of the story. If the employee isn’t eligible, you must still consider time off as a reasonable accommodation.

Intermittent leave: The FMLA allows leave on an intermittent basis. So does the ADA. Intermittent leave is often used to allow employees to attend medical appointments or to allow employees time off for conditions that flare up from time to time such as seizures while medication levels are being adjusted.

Once an employee has used up his FMLA entitlement, consider more unpaid intermittent leave as a reasonable accommodation. Employers are permitted to obtain medical certification of the need for intermittent leave.

When FMLA leave runs out

Employers may not automatically terminate a worker who is unable to return to work after exhausting FMLA leave. Employees may have the right to unpaid leave as an accommodation under the ADA. The Equal Employment Opportunity Commission (EEOC) has won large settlements against employers for failing to consider leave as an accommodation.

Any employer with a policy of refusing leave as an accommodation once FMLA leave is exhausted is violating the ADA. Such employers are inviting the EEOC or individual workers to sue them.

Once the employee exhausts FMLA leave, the employer needs to determine how long the employee will be off work. Additionally, the employer must determine whether the employee is a qualified individual with a disability as defined in the ADA. Remember, this definition is not the same as the FMLA’s serious health condition.

If the employee is disabled under the ADA, the employer must begin the interactive accommodation process the law requires. The employer can refuse to accommodate the employee but must show that any accommodation would be an undue hardship. Should the case land in court, employers must show the undue hardship analysis.

Recent case example: Tallahassee Memorial Healthcare is a private community healthcare system with 2 hospitals and multiple healthcare centers. It had a strict and inflexible 12-week maximum leave policy that relied on FMLA eligibility. Employees who weren’t eligible for FMLA leave or were not ready to return to work after 12 weeks were fired. The EEOC sued on behalf of disabled employees who used up FMLA eligibility but needed more time off. According to the lawsuit, the employer refused to consider more time off as a reasonable accommodation or even discuss the matter.

The case was settled with the payment of over $375,000 to the disabled workers who were refused additional leave as a reasonable accommodation. (EEOC v. Tallahassee Memorial, No. 4:19-CV-00417, ND FL 2019)

Paid Time Off (PTO) strategies

You can use several PTO bank strategies to manage paid time off as an accommodation. For example, some employers allow employees to contribute paid leave hours. Employees who exhaust their paid leave may draw from those hours in addition to any leave they may have accrued. This approach allows employers to provide additional leave to employees who need it the most, including disabled workers. The employer only incurs minor administrative cost. A PTO bank may be the easiest way to manage additional time off for disabled workers out of leave. A big advantage is it draws down another employee’s earned leave even if the disabled worker has none. That’s a cost savings for you as the employer.

Another strategy is to eliminate paid time off altogether and simply allow employees to manage their leave needs. Some tech companies take this approach. Employees must still meet work goals but are generally left to manage their own time. If you adopt this approach, disabled workers won’t have to request time off as a reasonable accommodation. They simply take paid time off.

Employer resources

Fortunately, employers have several resources to assist them through the paid or unpaid time off as an accommodation process. The EEOC lists several disability-related resources at https://www.eeoc.gov/laws/types/disability.cfm#resources. Additionally, the Job Accommodation Network (JAN) has guidance specific to leave as an accommodation. The publication, Leave as an Accommodation, is part of JAN’s Accommodation and Compliance Series. Employers may access the publication at https://askjan.org/publications/Topic-Downloads.cfm?pubid=962838.

The publication states that the goal of leave is “to provide job-protected time in order to enable a qualified employee with a disability to manage his or her medical impairment and ultimately remain in the workforce.”

Examples of appropriate use would be:

• To attend medical appointments related to an episodic or chronic medical impairment (e.g., diabetes, bipolar disorder, asthma, etc.)
• To obtain medical treatment (e.g., chemotherapy, physical therapy, surgery, mental health counseling, in-patient substance abuse treatment, dialysis, etc.)
• To recuperate from an illness or surgery, or exacerbation of symptoms associated with an episodic or chronic medical impairment (e.g., flare-up of symptoms associated with multiple sclerosis, intestinal disorder, epilepsy, back condition, major depressive disorder, etc.)

Managing accommodation leave

The ADA does not require employers to provide indefinite leave. When employers request medical certification of the need for leave, they should request an anticipated return to work date. Court decisions vary on how long employers should allow a worker to take leave, including paid and unpaid leave. Some have ruled that six months is the maximum, others one year.

Employers may only deny leave if they can demonstrate that granting the leave constitutes an undue hardship on the company. Each employer’s situation is different, but the factors involved in the analysis are:

• An inability to ensure a sufficient number of employees to accomplish the work required;
• A failure to meet work goals or to serve customers/clients adequately;
• A need to shift work to other employees, thus preventing them from doing their own work or imposing significant additional burdens on them; or
• Incurring significant additional costs when other employees work overtime or when temporary workers must be hired.

Employers should never deny any accommodation request without performing this analysis. Courts will demand to see the employer’s reason for denying the leave.