DO WE REALLY HAVE TO HOLD THEIR JOB OPEN?

(2016’s Most Common Employer Question)

By Mark F. Kluger and William H. Healey

In 2016, if we had a penny for every time an employer told us that they did not want an employee who was out on medical leave to return, we would have a lot of pennies. As 2017 begins, we thought it would be helpful to anticipate and shed some light on the issue of just how much medical leave an employer must provide.  Here goes.

If that employer is one to which the Family and Medical Leave Act (“FMLA”) applies, the question of how long they must keep the job open for the employee’s return used to be very simple—twelve weeks. The FMLA requires a qualified employer (50 or more employees) to provide twelve weeks of unpaid, job protected leave for qualified employees for their own serious health condition (and for other reasons not relevant here). Until the past few years, we confidently advised that if an employee could not return to full or partial duty after twelve weeks of FMLA leave, an employer could terminate the employee. However, the Equal Employment Opportunity Commission (“EEOC”) has put a hard and fast stop to that practice through the use of another weapon in its arsenal: the Americans with Disabilities Act (“ADA”).

The ADA and similar state statutes require employers to make “reasonable accommodations” to allow a disabled employee to work or to return to work. An accommodation is reasonable if it does not cause the employer an “undue hardship.” So here’s the big change: The EEOC has decided that reasonable accommodation may include additional time off beyond that required by FMLA or any employer medical leave policy. For example, if an employee exhausts the twelve weeks of job protected FMLA leave but his or her doctor says that the employee may be able to return after eighteen weeks of leave, that additional six weeks of unpaid job protected leave may be a “reasonable accommodation” under the ADA.

One important Scrooge-like tidbit: Only the FMLA requires the continuation of health insurance during the twelve weeks. So for extended leave required by the ADA, the employer can issue a COBRA notice (based on the reduction in hours trigger) and require the employee to pay the full cost of continued health insurance. Tis the season!

Several months ago, the EEOC gathered its thoughts and issued a detailed guidance on this subject. The EEOC wrote that employers:

“…may have to modify policies that limit the amount of leave employees can take when an employee needs additional leave as a reasonable accommodation. Employer policies that require employees…to be 100 percent healed or able to work without restrictions may deny some employees reasonable accommodations that would enable them to return to work.  Employers also sometimes fail to consider reassignment as an option for employees with disabilities who cannot return to their jobs following leave.”

 The guidance further instructs that employers must treat a request for additional leave as one for reasonable accommodation and engage in an “interactive process” with the employee to obtain the facts needed to decide whether the employer can make the accommodation or if doing so would be an undue hardship allowing the employer to refuse the additional time off.

We hear you: How much additional leave is reasonable? How does an employer establish an undue hardship? The first factor is to determine whether the employee’s doctor can provide a definitive return to work date so that the employer can at least plan for the return. Unfortunately, because even a definitive date can change based on the employee’s recovery, more must be known. The EEOC’s guidance describes the most relevant factors:

  • the impact of the employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner (for example, only one coworker has the skills of the employee on leave and the job duties involved must be performed under a contract with a specific completion date, making it impossible for the employer to provide the amount of leave requested without over-burdening the coworker, failing to fulfill the contract, or incurring significant overtime costs); and
  • the impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer.

Before rejecting a request for additional unpaid leave based on an undue hardship, employers must be able to offer concrete evidence of the kind of difficulties described above together with the economic impact of those factors on the business.

Keep in mind that if an employee uses twelve weeks of FMLA and the employer survived without him/her, it may be difficult to prove that tacking on another four weeks would hurt. That is especially true for an employee whose job can easily be performed by a temp or covered by others with minimal or no overtime. Unpaid leave does not cost anything and, if the employee is on COBRA, the employer is not paying for health insurance. Satisfying the undue hardship burden may therefore be tough.

Before pulling the trigger on a termination under these circumstances, it is important to walk through this analysis with us.