Disability signs smallEmployers know that terminating an employee because they are disabled is against federal law, according to the Americans with Disabilities Act,  but what happens when the employee needs a leave of absence and their FMLA benefits have run out?  Providing leave as a reasonable accommodation is nothing new.  We have studied this issue extensively and published a whitepaper on the topic. Nonetheless, the situation continues to arise, with the same outcome: an employer must provide a reasonable accommodation, which may include an extended medical leave unless doing so would impose an undue hardship

Last week, the EEOC settled with Dialysis Clinic, Inc., a nationwide healthcare provider, by agreeing to pay $190,000 to a former employee with breast cancer, who was terminated after her  four months of medical leave was exhausted.  At the time she was let go, her doctor had stated that she would be cleared to work after an additional 2 months of leave.

EEOC Attorney Jonathan Peck said, “Ms. Lee was a long-term employee who only needed two more months to recover and return to work. Extending her medical leave would have posed little burden on Dialysis Clinic. Employers with inflexible leave policies lose the opportunity to help a valued employee return to work – and they’re violating the law.”

Keep in mind, however, that an employee is not entitled to unlimited leave as an accommodation. The 10th circuit in Hwang v. Kansas State University held that anything more than a 6-month leave would not qualify as a reasonable accommodation.

As always, we urge employers to be deliberate and intentional in how they administer leave under these circumstances:

  • Employers must follow the ADA’s interactive process, assessing the employees’ needs and position, and determining whether and how they can be accommodated.
  • Employers must ensure that policies are applied consistently for disabled and non-disabled employees. While the interactive process may result in different accommodations for different employees and circumstances, the employer must apply the interactive process consistently.

Sound complicated? Employers should consider outsourcing or co-sourcing ADA leave and workplace accommodations to the experts at Reed Group. We ensure that each request for an accommodation is met with the appropriate response, protecting your company from risk! For more information about our ADA administration options, please contact Reed Group, at 800-347-7443.

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