ADA may require leaves of absence beyond FMLA mandates

Managing medical leaves of absence is the bane of nearly every HR department I come in contact with. In my experience, companies either react too harshly (immediate termination upon the expiration of 12 weeks of FMLA-eligible employees), or too passively (extending leaves of absence indefinitely). HR World has posted an interesting article on extending FMLA leaves of absence beyond 12 weeks, and attempts to strike a balance by asking how long is too long.

The article points out that a company may want to extend a leave beyond 12 weeks so as not to lose a valuable employee. The issue, however, runs much deeper, and under certain circumstances an extended unpaid leave of absence might be required as a reasonable accommodation under the ADA for employees with a qualifying disability. The ADA's regulations specifically provide that an unpaid medical leave qualifies as a reasonable accommodation and must be provided to an otherwise qualified individual with a disability. 29 C.F.R. § 1630.2(o). Thus, an employer may still have to provide unpaid leave as a reasonable accommodation: 1) after an employee exhausts the 12 weeks of FMLA leave, or 2) if an employer has fewer than 50 employees or if the employee has less than one year of service.

The EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (at Q. 21) gives the following helpful example:

An employee with an ADA disability needs 13 weeks of leave for treatment related to the disability. The employee is eligible under the FMLA for 12 weeks of leave (the maximum available), so this period of leave constitutes both FMLA leave and a reasonable accommodation. Under the FMLA, the employer could deny the employee the thirteenth week of leave. But, because the employee is also covered under the ADA, the employer cannot deny the request for the thirteenth week of leave unless it can show undue hardship. The employer may consider the impact on its operations caused by the initial 12-week absence, along with other undue hardship factors.

No leave must be extended indefinitely, and at some point a leave of absence is going become an undue hardship to the employer and can be ended. When that is, though, is not only going to vary from employer to employer, but also from employee to employee. Each specific leave of absence must be analyzed on its own merits, case by case. Six months is generally a good rule of thumb to follow, but there are many circumstances where a court could deem six months unreasonably short. The bottom line is to work with the employee and the medical caregiver to determine how long an employee needs to be off work, and make the best efforts, within reason, to accommodate the necessary leave for employees who qualify for protection under the ADA.