So many times, an employer finds they have reached a crossroad, that point when an employee has reached the end of Family Medical Leave (FMLA) entitlement of 12 weeks. 12 weeks of FMLA equal 84 calendar days, what is an employer to do? This does not count the days of any small necessity leave such as state or local leave entitlements. How long can one employee remain out of work?
Covered employers, employers with 15 more employees (for each working day in each of 20 or more calendar weeks in or preceding calendar year) now begin navigating the realm of ADA.
At the end of FMLA leave, if an employee cannot return to work, an employer begins the process of determining if an employee has a disability? This is when an ADA Coordinator or Human Resources professional begin navigating the gray area. FMLA is clear (for the most part), black and white, and there is a light at the end of the tunnel, 84 days. This is where an employer finds itself sometimes (most of the time) navigating fluid ever-changing water.
Does the employee have a disability? It is time to engage in the interactive process, a good-faith effort to learn more. In a situation where a disability is not visible or apparent, an employer can require a medical provider to determine the need for a reasonable accommodation. Does the employee meet the definition of either a physical, sensory, or mental impairment, which substantially limits a major life activity? Does a record of impairment exist and is the employee “regarded as” having a disability? These are all questions an ADA coordinator strives to find answers to.
When an employee cannot return to work, a medical provider weighs in, interactive meetings are complete, and it is determined that an employee qualifies under the protection of ADA now what? The treating provider is stating that the employee cannot return to work not even in a light-duty capacity.
The employee already has been out of work for 84 days, what does ADA require? A leave of absence of course. One form of reasonable accommodation is a request for a leave of absence, or more time off. How long of a leave of absence is in that gray area again! Unlimited leave is not a reasonable accommodation, however, determining the days of leave times takes more investigating.
Something to consider when determining if an organization can offer a leave of absence as a reasonable accommodation is unduly cost, request of time, disruption to operations, and would this request fundamentally alter the nature or operation of the business. ADA has no specific requirements, but two things are for certain, an organization cannot discriminate, and it must provide the same benefits as employees on non-ADA leave of absence.
So, what about when it is time to return? Employees with disabilities are entitled to return to the same job they held before the leave unless the employer can demonstrate that holding the job open will cause undue hardship. If there is an undue hardship, the employer could reassign the employee to another position, with equal benefits and pay. However, an employer has no duty to create a new position as an accommodation.
The duty of an ADA Coordinator or Human Resource professional is not always easier and often never the same day twice, the tireless efforts that go into assisting our disabled community make it all worth it.