When Enough Is Enough

hr410

How much leave is enough when it comes to the ADA?

We have an employee who has exhausted all of her paid leave, FMLA and then qualified for reasonable accommodation (ADA) leave about a month ago. She has a serious neurological condition for which it is unclear whether or not she'll ever be able to return to work. While her absence is probably not an "undue burden" on us, it does seem that there should be a reasonable time period for which she should either be able to return or we should be able to terminate.  What is that time period? When can we legally terminate? I don't want to be heartless, but when is enough really enough?

IT HR

I think your best bet here is to seek the advice of an attorney that specializes in this.  The ADA is very difficult.  If it is unclear whether this person will ever be able to return to work, she may qualify for disability benefits.  I wouldn't try to tackle this issue without an attorney.

TXHRGuy

[quote user="IT HR"] I think your best bet here is to seek the advice of an attorney that specializes in this.  The ADA is very difficult.  If it is unclear whether this person will ever be able to return to work, she may qualify for disability benefits.  I wouldn't try to tackle this issue without an attorney.[/quote]

I agree with IT HR.  Additionally, keep in mind that there are considerably differences across circuits.  Make sure you are talking to an attorney who is familliar with the circuit in which the employee is located.  If there are any jurisdictional issues (e.g., the employee worked in the 5th circuit but resides in the 8th circuit or the corporate office is in the 1st circuit but the employee's work location and residence is in the 9th circuit), then be sure to relate that information to your attorney.

Joy1

Agree with other posts - it will also be highly relevant what her medical provider says about the likelihood that more leave/accommodation will help her to return to work. An accommodation is only reasonable if it is reasonable likely to allow her perform the essential functions of her job. If more leave will not do that, then the accommodation of more leave is not a reasonable one. However, this is very risky territory, so lawyering up is a great idea.

HRforME

Here is a great link to an article by the EEOC themselves: http://www.eeoc.gov/policy/docs/fmlaada.html

 I agree with the others that I would get an employment attorneys advice.  Because I know of at least two court cases that are detailed in this article: http://federalfmla.typepad.com/fmla_blog/ada/index.html that rule in the employer's favor that unlimited time is not reasonable.

 

 

hr410

Thanks to all - these are very helpful comments. I appreciate it!