Employment NewsFlash, June 2011
Hot Off the Press: EEOC Addresses Extended Leaves
Managing employees who request extended periods of medical leave presents a difficult issue for many employers.
Scenario: An employee requests medical leave for her health condition. After exhausting all available leave both under the Family and Medical Leave Act and the company’s sick leave policy, the employee advises that she is unable to return to work for several more months.
Question: Can the employer automatically terminate the employee upon the expiration of her FMLA and sick leave?
Answer: No, in most circumstances. Automatic termination of employment due to failure to immediately return to work upon expiration of FMLA and sick leave risks violating the Americans with Disabilities Act.
It is undoubtedly frustrating to manage a workforce amid uncertainty about when an employee will return from medical leave. However, employers cannot simply look at the calendar and count the remaining days of FMLA leave and/or available sick or vacation days to give them certainty.
How can an employer effectively and proactively deal with employee medical leave? What time period is reasonable to hold a position open? What medical certifications can be requested? What happens if the employee’s return to work date keeps changing? How does the employer engage in an interactive dialogue with the employee?
On June 8, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) published testimony on how employers should address these issues without running afoul of the EEOC’s interpretation of federal employment laws. The EEOC summarized its view of employer best practices, which include:
Policies providing for automatic termination after a certain time period of leave are generally disfavored and may require modification given the specific circumstances of each leave request and whether such modification would pose an undue hardship to the employer.
Requiring an employee to return to work with an accommodation, in lieu of leave, or forcing an employee to use leave when a return-to-work accommodation is available, may be improper under certain circumstances.
An employer has the right to require periodic updates on the employee’s condition and possible date of return and to periodically reassess whether, based on these updates, continued leave is still a reasonable accommodation.
Where an employee gives no indication of if or when the employee will return to work (as opposed to when an employee provides a range of possible return dates), such indefinite leave typically may be denied as an undue hardship to the employer.
The EEOC’s full statement is available here. Although the EEOC’s views are given weight on these issues, courts are not bound by them. Additional views and debate on this topic are available here.
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