We have several employees who have exhausted their leave time under FMLA/CFRA, but now we’re wondering if we have to accommodate them for additional time since they may be considered “disabled” under the ADA. How do we determine whether they’re in fact disabled, and, if so, how long do we have to allow these employees to be off work?
— Mark S.
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The intersection of disability leave, family and medical leave, and workers’ comp is an incredibly complicated area. Allen Kato of Fenwick & West offers some clarification on how long an employee with a disability must be accommodated when family and medical leave has been exhausted.
Case law is constantly being generated by the courts about what’s a covered disability and what would then therefore be a reasonable accommodation—what the extent of the employer’s obligation would be. The rule of thumb that I would give you is that if an employee does come forward with an assertion that he or she is disabled, one of the first things to establish is whether or not there is in fact a covered disability. Sometimes it’s going to be obvious. For example, if an employee comes forward and says, ‘I’ve just been diagnosed with AIDS’ or cancer or some other very serious situation, that disability will clearly be covered.
Conversely, there may be other situations where an employee comes forward with some condition that may not be serious enough to constitute a disability, or you may not be certain whether an employee has a certain condition. There are steps you can take, such as requiring a medical examination or asking medical questions, just as long as you are complying with the laws in that regard.
Then, once you’ve determined that there is in fact a disability, you can get into the issue of what a reasonable accommodation would be. You need to engage in an interactive process, working with the employee and his or her healthcare provider, as well as presumably getting advice from a healthcare provider that is advising your company, as to whether the requested accommodation is reasonable. And, of course, you should consult with counsel if this gets particularly complicated or legally risky for you.
But generally you’re going to know your own operation best—in other words, what you can and can’t accommodate. Maybe the employee is not able to perform the essential functions of the job, with or without an accommodation, or maybe what the employee is asking for would constitute an undue hardship on the business. If either of those is the case, then you’re not going to be able to accommodate that request.
Now, suppose an employee has exhausted his or her FMLA/CFRA time, and then comes back and asks for a certain number of additional weeks or months off. Is it reasonable to believe that giving this employee, say, an extra two weeks off will allow the person to be back at work, fully able to perform? If so, then that would probably be considered a reasonable accommodation. Conversely, if the employee asks for another 6 months to a year off, and even then it’s not certain that the employee will be able to return to work after that time, that doesn’t sound to me like a request for a reasonable accommodation. It may very well constitute an undue hardship for your company to have to keep the position open for another 6 months or a full year without being able to permanently replace the employee. So those are just extreme examples, but that’s how the courts would analyze that situation.
Allen Kato is an associate at the San Francisco office of law firm Fenwick & West.