Dealing With Disabled Employees Who Have Exhausted FMLA Leave

December 13, 2011

A common problem for employers is determining what to do with employees who are disabled under either federal or state law and have exhausted their Family and Medical Leave Act (FMLA) leave. The Equal Employment Opportunity Commission (EEOC) has targeted employers that have blanket policies mandating termination of employment after a defined period of leave without exploring or offering further accommodations for affected employees. By the same token, the EEOC has stated that employers do not have to provide employees with indefinite leave. The question is how much leave is required after an employee exhausts his FMLA leave? There is no black-and-white answer. This article discusses what you need to consider when dealing with disabled employees who have run out the clock on FMLA leave.

The Law

Title I of the Americans with Disabilities Act (ADA) covers private, state, and local government employers with 15 or more employees; Section 501 of the Rehabilitation Act of 1973 covers federal agencies. The statutes contain nearly identical antidiscrimination provisions. The ADA prohibits discrimination against applicants and employees who meet the statute’s definition of a “qualified individual with a disability.” The ADA defines “disability” as:

(1) a physical or mental impairment that substantially limits one or more of an individual’s major life activities;

(2) a record of such an impairment; or

(3) being regarded as having such an impairment.

A qualified individual with a disability can (1) satisfy the requisite skill, experience, education, and other job-related requirements and (2) perform the essential functions of a position with or without reasonable accommodation. Wisconsin’s disability law, the Wisconsin Fair Employment Act (WFEA), applies to all employers with at least one employee and is broader than its federal counterparts in that it doesn’t use an “essential functions” test and applies to individuals who have physical impairments that limit their ability to perform a specific job, as opposed to an array of positions.

The ADA and the WFEA require you to provide reasonable accommodation to qualified employees and applicants with disabilities unless doing so would cause an undue hardship on business operations. Generally, an accommodation is any change in the work environment or in the way things are customarily done to enable an individual with a disability to enjoy equal employment opportunities. There are three categories of reasonable accommodations:

(1) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the desired job;

(2) modifications or adjustments to the work environment or to the manner or circumstances under which the position held or desired is customarily performed that enable a qualified individual with a disability to perform the essential functions of the job; or

(3) modifications or adjustments that enable an employee with a disability to enjoy the same benefits and privileges of employment as other similarly situated employees without disabilities.

Because Wisconsin law doesn’t employ an “essential functions” test, potential accommodations under state law may be broader than those required under federal law. It’s important to note that you don’t have to provide a reasonable accommodation that would cause an undue hardship on your operations. However, generalized conclusions are insufficient to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances and show that a specific reasonable accommodation would cause significant difficulty or expense. A determination of undue hardship should be based on several factors, including:

 

  • the nature and cost of the accommodation needed;
  • the overall financial resources of the facility making the reasonable accommodation;
  • the number of persons employed by the facility;
  • the effect of the accommodation on expenses and resources of the facility;
  • the overall financial resources, size, number of employees, and types and locations of all facilities owned by the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
  • the employer’s type of operation, including the structure and functions of the workforce, the distinct locations, and the administrative or fiscal relationship of the facility to the employee requesting accommodation; and
  • the impact of the accommodation on facility operations.

Undue hardship is determined based on the net cost of the accommodation to the employer. Thus, you should determine whether funding is available from an outside source such as a state rehabilitation agency to pay for all or part of an accommodation. Additionally, you should determine whether you’re eligible for certain tax credits or deductions to offset the cost of an accommodation. Also, to the extent that a portion of the cost of an accommodation causes undue hardship, you should ask the individual making the request if he will pay the difference. If you determine that a requested accommodation will cause an undue hardship but an alternative accommodation would not, then you must provide the alternative accommodation.

Leave Requirements Under Federal and State Disability Laws

Employees with disabilities are entitled to the same types of leave you usually provide to nondisabled workers. Similarly, you must provide disabled workers equal access to programs granting flexible and modified work schedules. If a disabled employee needs leave or a modified schedule beyond what’s provided under your benefits program, you may have to grant the request as a reasonable accommodation if it doesn’t create an undue hardship.

Although you may have to grant extended medical leave as a reasonable accommodation, you have no obligation to provide indefinite leave. Granting indefinite leave, including frequent and unpredictable requests for leave, can impose an undue hardship on operations.

Indefinite leave is different from leave requests that (1) include an approximate date of return (e.g., a doctor’s note stating the employee is expected to return at the beginning of March) or (2) give a time period for return (e.g., a doctor’s note stating that the employee will return sometime between March 1 and April 1). If the approximate date of return or the estimated time period turns out to be incorrect, you may seek medical documentation to determine whether you can continue providing leave without an undue hardship or whether the request for leave has become one of indefinite duration.

There is no clear line of demarcation indicating when extended leave becomes indefinite. The answer is determined when the leave becomes an undue hardship, and that’s determined on a case-by-case basis and involves engaging in the interactive process with the employee. As a result, when an employee is in no man’s land, it’s prudent to seek counsel to determine how long a position needs to be left open to accommodate the employee on extended leave. In some cases, a reasonable accommodation may be to simply allow extended leave without pay but not hold the position open. When the employee is able to return to work, you can give him preference with respect to future vacancies.

Attendance Policies

If requested, you may have to modify your attendance policies as a reasonable accommodation (absent undue hardship) or exercise clemency and forbearance for a period of time in applying attendance policies to disabled employees. Modifications may include allowing an employee to use accrued paid or unpaid leave, adjusting arrival or departure times (e.g., allowing an employee to work from 10:00 a.m. to 6:00 p.m. rather than the usual 9:00 a.m. to 5:00 p.m.), and providing periodic breaks.

Although the ADA may require you to modify your time and attendance requirements as a reasonable accommodation (absent undue hardship), you need not completely exempt an employee from time and attendance requirements, grant open-ended schedules (e.g., the ability to arrive or leave whenever the employee’s disability necessitates), or accept irregular, unreliable attendance. Generally, you don’t have to accommodate repeated instances of tardiness or absenteeism that occur frequently, over an extended period of time, and often without advance notice. The chronic, frequent, and unpredictable nature of such absences may put a strain on business operations for a variety of reasons, including:

  • an inability to ensure a sufficient number of employees to accomplish the work required;
  • failure to meet work goals or to adequately serve customers and clients;
  • a need to shift work to other employees, thus preventing them from doing their own work or imposing significant additional burdens on them; and
  • incurring significant additional costs when other employees work overtime or when temporary workers must be hired.

Under those or similar circumstances, an employee who is chronically, frequently, and unpredictably absent may not be able to perform one or more essential functions of the job. In the alternative, you may be able to demonstrate that any accommodation would impose an undue hardship, thus rendering the employee unqualified.

Bottom Line

An otherwise qualified individual with a disability is entitled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leave wouldn’t impose an undue hardship on your business operations. To evaluate whether additional leave would impose an undue hardship, you may consider the effect of an employee’s initial 12-week absence (along with undue hardship factors) on operations. You may not blindly apply attendance policies to individuals with disabilities. Many questions relating to employees with real or perceived disabilities can be very difficult, and there often is no easy answer.

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For more information about "Dealing With Disabled Employees Who Have Exhausted FMLA Leave," contact Saul C. Glazer at sglazer@axley.com or 608.260.2473.