I frequently receive calls from clients involving an employee who is about to use up all of his medical leave, but who has little chance of returning to work — either at the end of his 12-week Family and Medical Leave Act leave period or anytime soon thereafter. Many times these calls involve an employee who has some sort of condition that the doctors cannot quite figure out or who has a workplace injury and simply wants to maximize his workers’ compensation claim recovery in any way possible. Either way, the common element is that the company has no indication as to when the employee might return to work. The company therefore cannot make definite plans about how to cover the employee’s work duties.

The most important concept to remember in these situations is that fulfilling the FMLA’s 12-week leave requirement does not mean that a company has met all of its legal obligations in all situations. Not only that, even longer company leave policies will not always satisfy the company’s legal obligations either.

The legal question is not whether the company has a leave policy — and applies it in a nondiscriminatory fashion — but whether the policy takes into consideration the individual needs of the employee to whom it is applied. More specifically, the question is: Should the employer consider extending the leave beyond the employee’s entitlement if it will enable the employee ultimately to return to work?

Work injuries can present a particular form of the problem. If a work injury is involved, virtually all states have anti-retaliation provisions in their workers’ compensation statutes. If a company makes a discharge decision without it being tied to a specific company policy, like an attendance policy, the decision can appear to be retaliatory. To address leave for workers’ compensation injuries that often take longer than 12 weeks to resolve, many companies have no-fault maximum leave policies that provide leave longer than the FMLA’s 12 weeks. Many states, such as Alabama, will uphold discharge decisions under specific company policies as long as they are applied to workers’ compensation and nonworkers’ compensation leaves equally.

However, these maximum unpaid leave policies often present the exact same problem as can be presented under the FMLA even though they are longer. What happens when the leave is about to expire but the company still does not know the employee’s intentions? Should the employer consider extending the leave beyond the maximum leave period if it will enable the employee ultimately to return to work?

According to the U.S. Equal Employment Opportunity Commission, employers absolutely must consider leave extensions, whether they involve FMLA leave or any other company leave. This is because the EEOC and many courts consider a leave extension a “reasonable accommodation” under the Americans with Disabilities Act. The EEOC’s enforcement guidelines specifically state that

“if an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its ‘no-fault’ leave policy to provide the employee with the additional leave.”

The guidance also states that an employer must hold an employee’s job open unless the company can prove that it is an “undue hardship” under the ADA.

Although these guidelines have existed for more than 10 years now, two cases from the EEOC’s press release page demonstrate that the issue continues to surface regularly. In June 2014, the EEOC entered into a consent decree with Princeton HealthCare System in New Jersey to settle a lawsuit alleging that the hospital automatically fired disabled employees after 12 weeks of FMLA leave. The settlement amount was $1.35 million. Similarly, just on Nov. 4, 2014, the EEOC entered into a consent decree with Doumak Inc., a Chicago manufacturing company. In that case, the challenged leave policy that required automatic discharge actually was contained in a collective bargaining agreement. The settlement amount was $85,000.

Employers do not always lose when they decide to enforce their leave policies as written, however. For example, in one case tried by Bradley Arant Boult Cummings not long ago, the employer won because the employee requesting leave requested indefinite leave. That is, the employee simply requested leave for her cancer without providing any information about how long she needed to be off or how the leave would allow her to return to work. Similarly, in a case decided just this past summer, the Tenth Circuit ruled in favor of the employer, Kansas State University, even though the university refused to provide a leave extension beyond the six-month leave provided for in the university’s policies. In the Kansas State University case, the employee was off work for six months and requested leave for yet several more months. The court held that the employee was asking for leave “not to work” rather than for leave that would allow her to return to work. Although the court considered several factors in that case, one of the key factors for the court likely was that the leave requested simply was so long. In other words, it was not a short well-defined period of time needed for a specific medical treatment.

Setting aside varying results in litigated cases, it is safe to say that a blanket policy requiring automatic discharge at the expiration of company leave — whether FMLA or otherwise — is suspect. The EEOC continues to look for individualized decision-making with the interactive process between employer and employee as contemplated by the ADA.

What is the best advice for employers? Several steps are worth considering.

• Consider notice: What kind of notice has the company received? When an employee’s leave is coming to an end and the company is aware, from the employee or through its medical department, that a short period of further medical treatment is all that will be needed to return the employee to work, be careful. Be proactive in considering a leave extension. In other words, do not automatically terminate the employee, even if a formal leave request has not been made.
• Engage in the interactive process: Has there been a discussion? This probably is the most important step. Talk to the employee. Ask what he or she needs and find out what the doctor recommends. Although technically the employee should request an accommodation first, in real life it often is difficult to deny later that an employee failed to make an accommodation request.
• Examine reasonability: Is the leave extension reasonable? Stated another way, how long is the leave request and how does the leave request relate to prospective medical treatment for the employee. If the request is too long, then the leave perhaps will not be found to be reasonable.
• Consider effectiveness: Will the accommodation of additional leave actually allow the employee to return to work? This factor is a little different from the reasonability issue. This consideration requires an analysis of the proposed leave, and accompanying medical treatment, as it relates to the requirements (the “essential functions”) of the job. For example, if the extended leave will bring the employee to a sedentary work level, but the employee’s job is a heavy-labor job, the leave request likely will not accomplish anything toward actually returning the employee to work.
• Rule out undue hardship: Does the leave request cost too much? Demonstrating undue hardship typically is a tough burden for employers to meet. Short and well-defined level requests rarely will meet this undue hardship standard.
• Document: Will you be able to recall what was offered later on? Sometimes it takes ADA cases years to work through the EEOC process and courts. Be sure that, when the time comes, the company can show that it did, in fact, meet its interactive process and reasonable accommodation obligations under the ADA.

via Examining Return-To-Work Issues Under The FMLA | Bradley Arant Boult Cummings LLP – JDSupra.