WORKER CAN’T SAY WHEN HE’LL BE ABLE TO RETURN AFTER SURGERY, DOES BOSS HAVE TO HOLD JOB OPEN?
QUESTION: One of my employees needed heart surgery several months ago, and our firm approved three weeks’ leave as paid time off, plus another nine weeks unpaid leave under the Family and Medical Leave Act. There were complications after his surgery, so we approved another three weeks’ FMLA. He now says he needs another operation, and has asked for additional leave as an accommodation under the Americans with Disabilities Act. He can’t tell us how much leave he needs, because he doesn’t know when he’ll be healthy enough to return to work. Do we have to give him more leave? The sad truth is we really need to fill his position; we’ve been using temps for more than three months, and its hurting both our bottom line and our ability to get the job done.
ANSWER: From the facts you state here, you probably do not have grant your employee’s accommodation request and – assuming he is an at-will employee – may discharge him and hire a replacement. But, you should move cautiously.
The purpose of Title I of the Americans with Disabilities Act (ADA) is twofold: It prohibits discrimination in employment against people with disabilities and it requires employers to make “reasonable accommodations” to allow people with disabilities to work. Unlike the Family and Medical Leave Act, which allows workers to take leave for serious medical conditions, the focus of the ADA is to allow workers to keep doing their jobs.
Any request for an accommodation under the ADA must be reasonable, and it cannot cause the employer to suffer any “undue hardship.”
Most accommodations involve some inconvenience to the employer, but inconvenience and cost, without more, do not amount to “undue hardship.” Factors used to determine whether the hardship the employer suffers reaches this standard include: the nature and cost of the accommodation, the financial resources, size and number of employees of the facility and of the employer, the type of operation/business; how providing the accommodation would affect the facility and the employer, whether the accommodation reduces efficiency in other jobs, infringes on other workers’ rights (gives seniority to disabled person, who has not earned it) or impairs safety in the workplace.
Under the ADA, a period of leave may be necessary to enable an employee to return to work and, under some circumstances, may be a reasonable accommodation. The ADA has no set limit on the duration of a such a leave, but leave granted as an accommodation must result in the employee being able to return to work; it cannot be for an indefinite period.
Because your employee is unable to state whether additional time off will enable him to return to work, you are not required to grant the requested accommodation. Assuming he is able to give you a definite return date, you may still be within your rights in denying the requested accommodation if it will cause your business to suffer undue hardship.
If you deny the request, however, it would be wise to offer your employee an alternative that might meet some of his needs while not harming your business. Denying a request without engaging in the interactive process violates the ADA, and can result in liability if the employee can demonstrate that s/he could have been reasonably accommodated but for the employer’s refusal to engage.
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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law