ADA & LEAVES OF ABSENCE
SKAPLANESQ
1 Post
UNDER THE ADA A LEAVE OF ABSENCE MAY BE A REASONABLE ACCOMODATION FOR AN EMPLOYEE'S DISABILITY. COURTS IN VARIOUS STATES HAVE INDICATED THAT A MAXIMUM LEAVE DURATION FOLLOWED BY A TERMINATION DOES NOT OFFEND STATE LAWS LIKE WORKERS' COMPENSATION , ETC. HOW DO YOU RECONCILE A EMPLOYMENT POLICY THAT PROVIDES FOR RESIGNATION/TERMINATION AFTER ALL LEAVE HAS BEEN EXHAUSTED TO THE INDIVIDUALIZED ASSESSMENT REQUIREMENTS OF THE ADA?
Comments
Leave is given with the expectation that the employee will be able to retun to work within a reasonable period of time to perform the essential duties of the job with or without further reasonable accommodation.
Nothing in ADA requires an employer to grant indefinite leave. If an emplyer has a policy and practice of holding employees to an attendance expectation, that expectation could be taken by EEOC or a court as an essential demand of the employer. If a disabled employee cannot meet the essential demands of an employer even with reasonable accommodation, then the employee would no longer be ADA qualified. It is best then for an employer to grant leave if it is required for a reasonable period of time and perhaps a little more before saying "enough is enough; no more leave."
But in holding an ADA-qualified employee to a time limited leave and then ordering the employee to return to work under threat of termination, the employer will probably be under the "gun" to demonstrate a policy and practice of holding all emplyees (both disabled and non-disabled) accountable to some reasonable period of leave and then terminating them if they don't return to work with or without reasonable accommdation.
Further it is possible for an employer to argue that further leave beyond a particular period of time would cause undue hardship and therefore it would not be required to grant that further leave. However, usually establishing undue hardship is a difficult effort since the larger the company the more likely it is that it has resources to overcome the hardship caused by continued leave (for example, it could hire an agency "temporary").
One of the things that an employer may be able to do is to show that over a period substantial time an unreasonable number of absences or unreasonable length of leave has occurred that has had a cummulative detrimental impact to the oeprations of the company in some manner. For example, other emplyees have had to stop their work to handle the absent employee's work; cient's have not be served properly because of the employee's repeated or continued absence.
That should be documented over the period of time and the emplyee should be informaed about it with the statement that leave will not be granted indefinitely.
If an emplyer is consistently implementing an attendance policy, as I said before, on both disabled and non-disabled emplyees, after providing a reasonable length of leave under ADA, an emplyer could be able to terminate the employee if he or she didn't return to work. At what point that would be in any given case may have to be determined individually.
While a no-fault absence policy may float, I suspect that at the time a discharge were contemplated for an ADA qualified employee because of too many absences, it will still fall upon the employer to show the cumulative detrimental impact those absences are having.
I can't speak to anything in Texas state law.
Those are just my thoughts on your question.