Spring Break season is here! As a result, employers may be receiving time off requests. Regular run of the mill vacation or PTO requests are generally easy to handle.

But what should an employer do if faced with a scenario like the one below?

Scenario:

You have a long-term high performing employee whose attendance has always been impeccable. On April 6, the employee sustains injuries cliff jumping over Spring Break. The employee provides a doctor's letter that requested about 6 weeks off with a return-to-work date of May 16. But on May 16, the employee provides another doctor's note requesting another 6-week extension due to his medical conditions. And then another and another...the pattern keeps repeating until the employee has been out of work for over 10 months! He exhausts federal Family and Medical Leave Act (FMLA) and state-mandated leave, and still has not returned to work.

Now what?

What are your legal obligations as an employer?

Under the Americans with Disabilities Act (ADA), employees may take leave as a reasonable accommodation if it permits them to perform the essential functions of attendance (i.e., return to work). But the amount of time the employee is on leave must be reasonable.

The Equal Employment Opportunity Commission (EEOC) and most courts agree that indefinite leave is not a reasonable accommodation and accommodating such leave represents an undue hardship to the employer. Look at, EEOC 2016 Resource Document, Employer-Provided Leave and the Americans with Disabilities Act | U.S. Equal Employment Opportunity Commission (eeoc.gov), Undue Hardship.

When do repeated extensions become indefinite leave?

Indefinite leave is when the employee cannot say whether or when he will be able to return to work at all.

Courts have analyzed these repeated extensions of leave requests, such as in the scenario above, and have typically treated them as indefinite leave. They also have typically held that repeated extensions may become unreasonable when an employee has already taken a lengthy period of medical leave.

The EEOC agrees, noting in its guidance that when an employee seeks a second 6-week extension of leave (after an initial 12-week leave), the employer may ask the doctor "why the doctor's earlier predictions on return turned out to be wrong," and for "a clear description of the employee's current condition, and the basis for the doctor's conclusion that only another six weeks of leave are required." If the doctor "states that the employee's current condition does not permit a clear answer as to when he will be able to return to work," then this "supports a conclusion that the employee's request has become one for indefinite leave" and that "this poses an undue hardship and therefore the employer may deny the request." Check out: EEOC Fact Sheet Applying Performance and Conduct Standards to Employees with Disabilities | U.S. Equal Employment Opportunity Commission (eeoc.gov) (2008), Example 39.

At what point should the employer contact the employee or the health care provider to obtain more information about the employee's condition and leave?

It is important to keep in touch with the employee and continue to engage in the interactive process. In the scenario above, the employer should obtain more information either directly from the provider or indirectly through the employee.

First, the employer will want to confirm the specific return to work date and the certainty of that date. Given the prior history of repeated extension(s), this is a reasonable request.

Second, an employer may want to inquire about the likelihood of recovery or ability to return to work and why the earlier predictions of recovery and return to work have changed (and continue to change).

This is not only important for the employer to make an informed decision but also, courts have found that an employer should take such steps before determining if the leave is "indefinite."

Should the employer consider options other than leave?

Many employers mistakenly think it is all or nothing: the employee must be reinstated to the job prior to the accident or not at all. That should not be the default position. Other options are available and the employer is required by the ADA to consider them by continuing the interactive process if full return to work in the same position is not currently feasible.

For example, if the employee is unable to work the current job, the employer should consider whether a reasonable on-the-job accommodation would enable the employee to perform the essential functions. Or, consider whether there are other jobs available within the company to which the employee could be transferred. Alternatively, would part-time or fully remote work be possible? Often employers believe that they must provide leave or nothing at all but it is beneficial to both the employer and employee to consider other options that can ultimately get the employee back to work.

If an employee is granted leave after FMLA and state job-protected leaves exhaust should the employer hold the employee's job?

Possibly. The EEOC takes the position that unpaid leave means holding the employee's specific job, unless doing so would cause an undue hardship. Of course, the longer the employee requests leave, however, the more likely holding the position open would constitute undue hardship. See, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA | U.S. Equal Employment Opportunity Commission (eeoc.gov).

In summary, stay in touch with your employee and their health care provider, consider other options, and document your efforts!

Reliance Matrix can help!

Through its insurance and administrative services entities, Reliance Matrix offers integrated leave management services including accommodation solutions and disability leave accommodations under the ADA. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager.