ADA: Leave as a Reasonable Accommodation
Employees who are ineligible for or have exhausted federal or state FMLA may be still entitled to leave as a reasonable accommodation under the Americans with Disabilities Act or analogous state law. Any policy or practice of terminating employees who cannot return to work at the end of their Family Medical Leave or the end of a fixed period of time out of work is legally suspect and should not be followed without consulting counsel.
The following questions should be considered:
- The nature of employee’s disability and limitations;
- Whether there are reasonable accommodations, other than leave, that will enable the employee to perform the essential functions of the job;
- The likelihood (not certainty) that leave will enable the employee to perform the essential functions of the job;
- Anticipated duration of the leave, and whether the leave is estimated to be for a fixed or indefinite duration;
- The impact of leave on the employer’s operations, considering such things as:
- Whether any third parties or outside sources are available to defray the cost or burden of the leave;
- Number of employees in total and/or at the facility;
- Number of employees who can share the workload;
- Whether there are other employer facilities from which to draw additional support;
- Availability of temporary employees with the necessary skills and qualifications to take over the employee’s job duties;
- Effect of the leave on business operations, workflow, production, customer service, etc.; and
- Cost, in light of the overall financial resources of the employer.