From the desk of Tracie DeFreitas, M.S., Program Leader, Director of Training, Services, and Outreach
Employers frequently ask if they must consider extending an employee’s medical leave of absence beyond the protected time permitted under the Family and Medical Leave Act (FMLA) as a reasonable accommodation under the ADA. When employees exhaust twelve weeks of FMLA leave and still cannot return to work due to their own medical impairment, the employer may have an obligation under the ADA to grant additional unpaid leave as a reasonable accommodation, in some situations. An interactive process is necessary to determine – on a case-by-case basis – if it is an ADA qualifying situation, and if it is possible to extend the leave period without it posing an undue hardship on the business.
Unlike the FMLA, under the ADA there is no specific amount of leave time that is required as an accommodation. Thus, it is up to an employer's discretion to determine if and how much leave is reasonable. For example, in many situations, an extension of two weeks beyond the customary twelve weeks under FMLA may not have a grave impact on business operations. However, three, six, or twelve months may. Of course, this depends on the individual employment situation because one type of job may be able to tolerate a longer leave than another (e.g., sales representative vs. store manager). Employers who review and document how an employee’s leave of absence impacts business operations will be better equipped to decide when extended leave poses an undue hardship. If an ADA leave extension poses a hardship, the employer should be prepared to demonstrate why.
When ADA leave is granted, an employer is expected to hold the employee's position for the duration of leave, unless doing so will pose an undue hardship on operations. According to the Equal Employment Opportunity Commission (EEOC), when leave is no longer feasible in a particular position, reassignment to an alternative vacant position should be considered for the duration of leave. The employee would then return to that position when the leave period is completed. When there is no vacant position available, it is up to the employer to decide whether to let the employee go, or to place him or her in an unprotected, inactive leave status and search for a vacant position upon the employee's ability to return. For more information about leave as an accommodation under the ADA, see the EEOC guidance on Reasonable Accommodation and Undue Hardship under the ADA.
There is no apparent obligation under the FMLA for an employer to notify employees when their leave is about to expire, or to proactively ask if a reasonable accommodation is needed under the ADA. However, a best practice is to notify employees in advance, in writing, of the date of leave expiration and then request information regarding the ability to return to work, including an anticipated date of return. As part of this process, an employer may also inform employees of the option to engage in a discussion about accommodations under the ADA to assist them in returning to work, or to request additional leave because they are unable to return to work upon the expiration of the FMLA leave. If extended leave is needed under the ADA, the employer may request medical documentation to substantiate the existence of an ADA qualifying disability and also the need for the accommodation. Not all employees who qualify for an FMLA leave of absence due to a serious health condition will qualify for an ADA accommodation, although many employees with medical impairments will. To learn more about disability and the ADA, see JAN’s How to Determine Whether a Person Has a Disability under the Americans with Disabilities Act Amendments Act (ADAAA).
Recently, more employers have been asking for sample language to include in a letter informing employees of their FMLA leave expiration and opportunity to request an ADA accommodation. JAN offers the following text as a guide for drafting a notification letter. This language may be modified and included in the body of a letter and is not intended as legal advice.
- As of [date], your 12 weeks of job protected leave administered under the Family and Medical Leave Act (FMLA) will expire. We are contacting you in advance of that expiration to request information regarding your ability to return to work. We ask that you inform [name of person at # and/or e-mail] regarding your ability to return to work on or before [date}. Contact should be made within five business days of receiving this letter. [*Employers, if you require a note from a medical provider regarding the employee’s ability to return, you might include the information that is required here.]
- If you are unable to return to work by the expiration of leave due to your own medical impairment, you may request a leave extension as an accommodation under the Americans with Disabilities Act (ADA). If you elect to request extended unpaid leave, leave may be granted to you if you qualify to receive an accommodation under the ADA, and if the accommodation will not pose an undue hardship. You may be asked to provide additional medical information to support the continuing need for leave. A medical documentation request may be provided to you upon your request for accommodation under the ADA and should be submitted to [contact person] by [date]. [Employer] will then notify you if the unpaid leave is approved in accordance with the ADA. Please note, not all employees will be eligible to receive an extended leave under the ADA.
If you have questions related to leave as an accommodation under the ADA, contact JAN to speak with a Consultant. For additional information related to this topic, see the following articles:
- Nowak, J. (2012, July 24). Employer best practices for analyzing whether leave beyond FMLA is an "undue hardship" under the ADA. FMLA Insights. Retrieved from http://www.fmlainsights.com/employer-best-practices-for-analyzing-undue-hardship-after-fmla-leave-expires/
- Hyman, J. (2013, March 18). Labor: A tough pill to swallow—has the ADA made the FMLA irrelevant? Inside Council Magazine. Retrieved from http://www.insidecounsel.com/2013/03/18/labor-a-tough-pill-to-swallowhas-the-ada-made-the