Extended Leave is an Accommodation – Maybe Not

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November 17, 2017

As the after effect of the recent Seventh Circuit Court of Appeals decision about extended leave as an accommodation continues to develop, a serious question is developing of whether an employer is obligated to give an extended leave to a person with a disability who has exhausted their twelve weeks of federal medical leave.  The Seventh Circuit Court of Appeals decision said that the Americans with Disabilities Act is not an automatic extended leave law and seemed to imply there was no duty to provide extended leave to an employee who suffers from a medical condition that is preventing the employee from returning to work after being off for twelve weeks to heal.  Court cases have clearly said an employer cannot have an automatic termination policy after an employee exhausts medical leave provided by the federal law, but it is certainly unclear whether an employer is obligated to grant continued unpaid leave to an employee who suffers from a medical condition that prevents the employee from returning to work.  There is growing support for the argument that a leave extending beyond the twelve weeks provided by FMLA is not an automatic reasonable accommodation to be given to the disabled employee.

The limits of what constitutes a reasonable accommodation of granting additional time off is certainly unclear in light of this recent decision and the many statements being made by the human resource community.  I think it is safe to say that an employer would be obligated to grant an additional extension of the leave without pay for a very limited time if there is a strong prognosis from treating health professionals indicating the employee will be able to return to productive work with the company.  Where the line is to be drawn as to what constitutes a reasonable extended leave is certainly unclear and is subject to detailed consideration of every individual employee situation.

Until we get clearer guidance from the courts, I believe that employers need to consider some type of extended leave beyond the twelve weeks of federal mandated family leave in those situations where an employee is going to be able to return to work in the near future.  The real question will become what does the near future mean.

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