Managing Employee Leave under the ADAAA and FMLA

Under the ADA, employers must provide employees with disabilities with a reasonable accommodation. A reasonable accommodation can include a leave of absence. With the passage of the ADA Amendments Act (ADAAA), the number of individuals who can now claim to have a disability (and the number of employees who can now seek a leave of absence) has increased. While the FMLA provides a firm limit on the amount of leave allowed, neither the ADA nor the ADAAA stipulates how long an employer must provide a leave of absence as a reasonable accommodation. As a result, the maximum cap of 12 weeks under the FMLA on which many employers rely has been expanded in many circumstances to an undefined maximum period.

Employers who receive requests from employees for time off from work must consider both the FMLA and the ADA, as amended by the ADAAA, in addition to any state leave law. Even if none of these require leave, employers must also consider whether their own policies or past practices require them to provide the leave.

Whether leave is required will depend upon the type of leave requested, including whether it is for a solid block of time or for sporadic absences on a periodic basis. The impacts of the FMLA and ADA are different depending upon the type of leave requested.

Continuous Leave

Under the FMLA, a request for continuous leave often is easier for an employer to handle than a request for unscheduled, intermittent leave. An employer can more easily plan for and temporarily fill a position when it knows that an employee is going to be absent for a single continuous period. And, under the FMLA, the amount of leave is capped.

While the FMLA is easier to deal with for a continuous leave, the ADA is more complicated. Employers are used to the idea that under discrimination laws, they are generally required to treat employees consistently. In some respects, the ADA throws this idea out the window. In recent years, employers who have tried to treat employees consistently when it comes to leaves have come under scrutiny. Blanket or inflexible policies, no-fault policies and maximum leave policies can violate the ADA, according to the Equal Employment Opportunity Commission.

Under the ADA, employers must make a reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability, unless doing so would impose an undue hardship on the employer. Although the ADA itself does not mention leaves of absence as a reasonable accommodation, the EEOC and many courts have stated that employers must provide leaves of absence as a reasonable accommodation. Unlike the FMLA, the ADA does not set a maximum period of leave. Under the ADAAA, many employees can now claim that a medical condition that requires an absence qualifies as a disability. As a result, these employees may be able to take six months, a year, and perhaps even longer as a leave of absence. Depending upon the size of the employer and the nature of the work, the ability of the employer to claim undue hardship is often limited.

This does not mean that employers are hamstrung every time an employee requests time off for a medical condition. In order to be a reasonable accommodation, the requested leave must be designed to return the employee to work and allow him or her to perform the essential functions of the job. When there is no reasonable expectation that the leave will allow the employee to return to work, most courts have held that the leave is not a reasonable accommodation. Similarly, if there is no reasonable expectation as to when the employee will be able to return to work, the leave generally becomes unreasonable. In most circumstances, an indefinite leave is not a reasonable accommodation. Employers who are dealing with requests for lengthy absences, beyond that provided by the FMLA, should review the circumstances and the request to determine whether the leave meets the accommodation purposes of the ADA.

Intermittent Leave

Employees who need time off for a day here and a day there create their own unique issues for employers. These intermittent requests are often sporadic and without advance notice, making it difficult for an employer to deal with the absence. While FMLA use for continuous leave is fairly straight forward, FMLA leave for intermittent absences can be a logistical nightmare. Under the FMLA, an employer must provide eligible employees 12 “workweeks” of leave. For the 40-hour-a-week employee, this equates to 480 hours of leave in a 12-month period. For the 35-hour-a-week employee, this equates to 420 hours of leave in a 12-month period. Taken intermittently, this can amount to more than a day of leave a week, during every week of the year.

Employees who are not covered by the FMLA or who have exhausted their FMLA-leave allowance may still be entitled to additional time off as a reasonable accommodation if they are taking FMLA leave due to their own serious health condition and that condition is or may be a disability under the ADA. While the ADA generally poses the greater challenges for employers when employees seek continuous blocks of leave, the FMLA seems to frustrate employers more when employees request intermittent time off. Because FMLA leave is an entitlement and there essentially is no consideration of “reasonableness” or “undue hardship,” employers must accept the operational impact created by intermittent and sporadic absences under the FMLA. By contrast, courts have rejected employee requests to “work when they feel like it” as a reasonable accommodation under the ADA. While an employer may need to accommodate an occasional absence, under the ADA, an employer usually can show that repeated, sporadic and unpredictable absences cannot be accommodated without undue hardship. With some exceptions, employers generally are not required to accept irregular or unreliable attendance beyond that required by the FMLA.

Managing Employee Leave

Managing employee leave is difficult because each case requires an individualized inquiry. Ignoring employee use (and/or abuse) of leave or letting the process manage itself, while administratively easy at the start, is sure to lead to administrative headaches in the long run. Employers need to manage employee leave proactively before it gets out of hand. Because the law in each state and jurisdiction may vary, a good leave management program should involve the advice and assistance of counsel. Employers should consider the following practices, although not all of them will be applicable to every circumstance and jurisdiction:

• Maintain and enforce policies setting attendance expectations.
• Require employees to follow reasonable absence reporting procedures.
• Discipline employees for sporadic, unpredictable absences in accordance with company policy, unless such absences are protected under the FMLA (but be wary of the possible need to accommodate for single or infrequent absences).
• Do not ask for reasons for an absence. Employers are required to accommodate known disabilities. If an employee does not volunteer a disability or impairment as a cause for an absence, the employer is not required to seek this information.
• Integrate and coordinate leave policies so that a claim of undue hardship is consistent with leave that the employer provides by policy. (It is hard to claim a leave of absence creates an undue hardship if the employer's policy provides for lengthy leaves of absence at the employer's discretion.)
• Make sure FMLA-qualifying absences are properly designated and counted as FMLA. Do not forget, where appropriate, to count absences that also qualify as workers' compensation or short-term disability leave.
• Require medical certification for leaves. Consider seeking re-certifications and second opinions of initial FMLA medical certifications.
• Review certifications to make sure they are complete and consistent with what you hear from the employee and otherwise know about the employee's circumstances.
• Consider surveillance or other investigative options when rumors suggest inappropriate activity or fraud.
• Scrutinize absence patterns that may be inconsistent with the certification.
• Recognize that an employee's impairment may be considered a disability by a court.
• Be prepared to accommodate blocks of leave, even if the company already provides a generous leave policy. Courts require an individualized inquiry with respect to each individual. Often, this will require considering an accommodation beyond that which is provided by policy.
• Provide at least the amount of leave in the policy.
• Consider other accommodations to allow the employee to work, including allowing work from home, or offering a different schedule or different shift.
• Do not rigidly apply policies. Individually assess each set of circumstances.
• Engage in the interactive process. Now that the issue of whether an individual is disabled has all but been eliminated, the focus in disability discrimination cases will become whether the employer has engaged in the interactive process to consider a reasonable accommodation.
• Consider whether the leave will allow the employee to return to work. If there is evidence that even with the leave the employee will not be able to return to work, leave may be denied.
• If the employee has been on an extended leave, consider clarifying with the employee's doctor whether the employee is expected to return to work or whether the leave is indefinite.
• If leave is not provided, be able to identify and define the employer's undue hardship.
• Consult with counsel before terminating an employee who has requested leave.

Conclusion

Leave laws make it hard for employers to operate efficiently. Maintaining and enforcing policies, questioning and investigating suspected abuse and actively managing leaves before the leaves manage the workplace are essential for any employer in today's world.

Patricia Anderson Pryor, a member of this newsletter's Board of Editors, is a Partner in the Cincinnati, OH, office of Jackson Lewis.

Managing employee leave has become a persistent and growing challenge at many companies. Multiple instances of leave suddenly needed by seemingly healthy employees can easily frustrate and overwhelm an employer. Often, once one employee starts “abusing the system,” other employees soon follow suit. In the end, it is not unusual for an employer to have more than half of its employees in one department using some form of “protected” leave.

Protected absences can come in many forms. The most recognizable are the large blocks of continuous leave needed for a medical condition. More complicated are the one- or two-day absences three weeks apart, or when an employee periodically reports to work late. Each of these situations may be covered by the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and even state leave laws.

For years, the FMLA has been the source of headaches for employers. Under it, employers with 50 or more employees must provide certain employees with up to 12 weeks of leave per 12-month period for certain conditions.

Under the ADA, employers must provide employees with disabilities with a reasonable accommodation. A reasonable accommodation can include a leave of absence. With the passage of the ADA Amendments Act (ADAAA), the number of individuals who can now claim to have a disability (and the number of employees who can now seek a leave of absence) has increased. While the FMLA provides a firm limit on the amount of leave allowed, neither the ADA nor the ADAAA stipulates how long an employer must provide a leave of absence as a reasonable accommodation. As a result, the maximum cap of 12 weeks under the FMLA on which many employers rely has been expanded in many circumstances to an undefined maximum period.

Employers who receive requests from employees for time off from work must consider both the FMLA and the ADA, as amended by the ADAAA, in addition to any state leave law. Even if none of these require leave, employers must also consider whether their own policies or past practices require them to provide the leave.

Whether leave is required will depend upon the type of leave requested, including whether it is for a solid block of time or for sporadic absences on a periodic basis. The impacts of the FMLA and ADA are different depending upon the type of leave requested.

Continuous Leave

Under the FMLA, a request for continuous leave often is easier for an employer to handle than a request for unscheduled, intermittent leave. An employer can more easily plan for and temporarily fill a position when it knows that an employee is going to be absent for a single continuous period. And, under the FMLA, the amount of leave is capped.

While the FMLA is easier to deal with for a continuous leave, the ADA is more complicated. Employers are used to the idea that under discrimination laws, they are generally required to treat employees consistently. In some respects, the ADA throws this idea out the window. In recent years, employers who have tried to treat employees consistently when it comes to leaves have come under scrutiny. Blanket or inflexible policies, no-fault policies and maximum leave policies can violate the ADA, according to the Equal Employment Opportunity Commission.

Under the ADA, employers must make a reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability, unless doing so would impose an undue hardship on the employer. Although the ADA itself does not mention leaves of absence as a reasonable accommodation, the EEOC and many courts have stated that employers must provide leaves of absence as a reasonable accommodation. Unlike the FMLA, the ADA does not set a maximum period of leave. Under the ADAAA, many employees can now claim that a medical condition that requires an absence qualifies as a disability. As a result, these employees may be able to take six months, a year, and perhaps even longer as a leave of absence. Depending upon the size of the employer and the nature of the work, the ability of the employer to claim undue hardship is often limited.

This does not mean that employers are hamstrung every time an employee requests time off for a medical condition. In order to be a reasonable accommodation, the requested leave must be designed to return the employee to work and allow him or her to perform the essential functions of the job. When there is no reasonable expectation that the leave will allow the employee to return to work, most courts have held that the leave is not a reasonable accommodation. Similarly, if there is no reasonable expectation as to when the employee will be able to return to work, the leave generally becomes unreasonable. In most circumstances, an indefinite leave is not a reasonable accommodation. Employers who are dealing with requests for lengthy absences, beyond that provided by the FMLA, should review the circumstances and the request to determine whether the leave meets the accommodation purposes of the ADA.

Intermittent Leave

Employees who need time off for a day here and a day there create their own unique issues for employers. These intermittent requests are often sporadic and without advance notice, making it difficult for an employer to deal with the absence. While FMLA use for continuous leave is fairly straight forward, FMLA leave for intermittent absences can be a logistical nightmare. Under the FMLA, an employer must provide eligible employees 12 “workweeks” of leave. For the 40-hour-a-week employee, this equates to 480 hours of leave in a 12-month period. For the 35-hour-a-week employee, this equates to 420 hours of leave in a 12-month period. Taken intermittently, this can amount to more than a day of leave a week, during every week of the year.

Employees who are not covered by the FMLA or who have exhausted their FMLA-leave allowance may still be entitled to additional time off as a reasonable accommodation if they are taking FMLA leave due to their own serious health condition and that condition is or may be a disability under the ADA. While the ADA generally poses the greater challenges for employers when employees seek continuous blocks of leave, the FMLA seems to frustrate employers more when employees request intermittent time off. Because FMLA leave is an entitlement and there essentially is no consideration of “reasonableness” or “undue hardship,” employers must accept the operational impact created by intermittent and sporadic absences under the FMLA. By contrast, courts have rejected employee requests to “work when they feel like it” as a reasonable accommodation under the ADA. While an employer may need to accommodate an occasional absence, under the ADA, an employer usually can show that repeated, sporadic and unpredictable absences cannot be accommodated without undue hardship. With some exceptions, employers generally are not required to accept irregular or unreliable attendance beyond that required by the FMLA.

Managing Employee Leave

Managing employee leave is difficult because each case requires an individualized inquiry. Ignoring employee use (and/or abuse) of leave or letting the process manage itself, while administratively easy at the start, is sure to lead to administrative headaches in the long run. Employers need to manage employee leave proactively before it gets out of hand. Because the law in each state and jurisdiction may vary, a good leave management program should involve the advice and assistance of counsel. Employers should consider the following practices, although not all of them will be applicable to every circumstance and jurisdiction:

• Maintain and enforce policies setting attendance expectations.
• Require employees to follow reasonable absence reporting procedures.
• Discipline employees for sporadic, unpredictable absences in accordance with company policy, unless such absences are protected under the FMLA (but be wary of the possible need to accommodate for single or infrequent absences).
• Do not ask for reasons for an absence. Employers are required to accommodate known disabilities. If an employee does not volunteer a disability or impairment as a cause for an absence, the employer is not required to seek this information.
• Integrate and coordinate leave policies so that a claim of undue hardship is consistent with leave that the employer provides by policy. (It is hard to claim a leave of absence creates an undue hardship if the employer's policy provides for lengthy leaves of absence at the employer's discretion.)
• Make sure FMLA-qualifying absences are properly designated and counted as FMLA. Do not forget, where appropriate, to count absences that also qualify as workers' compensation or short-term disability leave.
• Require medical certification for leaves. Consider seeking re-certifications and second opinions of initial FMLA medical certifications.
• Review certifications to make sure they are complete and consistent with what you hear from the employee and otherwise know about the employee's circumstances.
• Consider surveillance or other investigative options when rumors suggest inappropriate activity or fraud.
• Scrutinize absence patterns that may be inconsistent with the certification.
• Recognize that an employee's impairment may be considered a disability by a court.
• Be prepared to accommodate blocks of leave, even if the company already provides a generous leave policy. Courts require an individualized inquiry with respect to each individual. Often, this will require considering an accommodation beyond that which is provided by policy.
• Provide at least the amount of leave in the policy.
• Consider other accommodations to allow the employee to work, including allowing work from home, or offering a different schedule or different shift.
• Do not rigidly apply policies. Individually assess each set of circumstances.
• Engage in the interactive process. Now that the issue of whether an individual is disabled has all but been eliminated, the focus in disability discrimination cases will become whether the employer has engaged in the interactive process to consider a reasonable accommodation.
• Consider whether the leave will allow the employee to return to work. If there is evidence that even with the leave the employee will not be able to return to work, leave may be denied.
• If the employee has been on an extended leave, consider clarifying with the employee's doctor whether the employee is expected to return to work or whether the leave is indefinite.
• If leave is not provided, be able to identify and define the employer's undue hardship.
• Consult with counsel before terminating an employee who has requested leave.

Conclusion

Leave laws make it hard for employers to operate efficiently. Maintaining and enforcing policies, questioning and investigating suspected abuse and actively managing leaves before the leaves manage the workplace are essential for any employer in today's world.

Patricia Anderson Pryor, a member of this newsletter's Board of Editors, is a Partner in the Cincinnati, OH, office of Jackson Lewis.