Time's Up - When Is 12 Weeks of Leave Not Enough?

Tina Fowler
December 9, 2005 — 2,634 views  
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The length of an employee’s medical leave of absence can include considerations under the Family and Medical Leave Act (“FMLA”) and the Americans With Disabilities Act (“ADA”) and state equivalent laws, if any. Although both federal laws may be implicated, the FMLA and the ADA differ in terms of their purpose, coverage, and requirements. It is well-settled now that the FMLA permits eligible employees to take up to twelve weeks of unpaid leave for a serious health condition that makes the employee unable to perform the essential functions of their job. The ADA protects qualified individuals with disabilities and requires reasonable accommodation, which can include a medical leave. This means that when the employee’s physical or mental condition is at issue, the employer should examine whether the FMLA applies, and then focus on other laws that may apply, such as the ADA.

The ADA provides protection to individuals with an actual disability, a record of disability, and to those regarded as disabled. Because the FMLA does not modify or affect federal or state laws prohibiting discrimination on the basis of a disability under the ADA, an employee covered by the ADA is not necessarily covered by the FMLA. Therefore, an employer should make two separate assessments when an employee requests accommodation and FMLA leave. One assessment should cover the FMLA and the other separate assessment should cover the questions needed to determine the reasonable accommodation process under the ADA. Where both the FMLA and the ADA apply, the employer must provide leave under whichever statutory provision provides the greater rights to the employee.

There may be situations in which a serious health condition will constitute a disability, entitling an employee to rights under both the FMLA and the ADA. Where an employee is covered by both, and barring an undue hardship, an employer may need to make a reasonable accommodation and grant the employee leave beyond that required by the FMLA. Once the FMLA’s twelve weeks of leave have expired, an employer must consider whether additional leave should be provided to the employee as a reasonable accommodation under the ADA. Generally, an otherwise qualified individual with a disability is entitled to more than twelve weeks of unpaid leave as a reasonable accommodation if the additional leave would not impose an undue hardship on the business. The amount of additional leave, if any, that would be “reasonable” may depend on a number of factors. The employer may consider the impact on its operations caused by the employee’s initial absence, along with the undue hardship factors specified in the ADA. However, courts have repeatedly ruled that an employer is not required to provide an open-ended period of leave as a reasonable accommodation under the ADA.

Additionally, although FMLA regulations place restrictions on the employer’s ability to contact the employee’s health care provider, there is no conflict between the FMLA provision allowing employers to ask for certification of the employee’s serious health condition and ADA restrictions on disability-related inquiries. When an employee requests FMLA leave for a serious health condition, employers will not violate the ADA by asking for the information specified in the FMLA certification form. While the FMLA form only allows for information requests relating to the serious health condition for which the employee is seeking leave, once twelve weeks have expired, the standard ADA medical certification may allow an employer to gain more health information about an employee. Under the ADA, an employer may conduct an investigation into an employee’s disability as long as the investigation is job related and consistent with business necessity. Therefore, given the restrictions placed on FMLA inquiries, an employer should first have a medical inquiry consistent with the FMLA. Once the FMLA leave is over, and the employee has asked for additional leave, the employer may request further medical information under the ADA in order to determine if additional leave is needed as a reasonable accommodation.

When considering whether to grant additional leave at the expiration of FMLA leave, employers should keep in mind that courts will generally look first to the language of the ADA. The ADA provides that covered individuals include those who can perform the essential functions of their jobs “presently” or in the “immediate future.” Therefore, when considering additional leave, an employer should exercise its right to obtain medical information which is job related and consistent with business necessity as it allows the employer to focus on two inquiries critical to a reasonable accommodation determination: (1) whether the need for leave is temporary; and (2) whether the employee will eventually be able to return to work.

Unlike the FMLA’s mandated maximum of twelve weeks of leave, there is no magic number of additional weeks of leave, if any, an employer must allow as a reasonable accommodation. Some courts have held that an employer’s refusal to grant an employee’s additional leave request may constitute a denial of a reasonable accommodation, while other courts have rejected claims that such an extended leave would constitute a reasonable accommodation. Generally, requests for indefinite leave are not a reasonable accommodation under the ADA when there is no indication that the employee can perform their essential job functions within a finite or reasonable amount of time. However, within the last year, the Equal Employment Opportunity Commission filed charges that a national retailer violated the ADA when it allegedly terminated workers who spent more than one year on disability leave without regard to their individual circumstances and return-to-work projects. Regardless, decisions are highly fact-specific, and an employer faced with a request by an employee for a leave in excess of twelve weeks should review its leave policies and precedents and also seek the advice of its counsel before denying the request.

Tina Fowler

Lathrop & Gage L.C.