Employees Who Fail to Return to Work May Be Entitled to ADA Accommodation

Employees who have taken extended leave under the Family and Medical Leave Act (FMLA) or an employ­ment contract may be entitled to an accommodation for additional leave under the Americans with Disabilities Act (ADA). If the employee indicates that he or she needs additional leave due to a medical condition, school officials should offer to engage in the ADA’s in­teractive process before taking employment action based on a failure to return to work.

The EEOC is the governmental entity that administers the ADA. Pursuant to EEOC guidance, the ADA applies to employees who have used all available FMLA leave. Accordingly, when an employee is unable to return to work at the conclusion of FMLA leave (or any other extended leave), school officials should en­gage with the employee to understand why the em­ployee is not returning to work and, if necessary, initiate the interactive process to discuss a reasonable accommodation. Such an accommodation would be structured to allow the employee to perform the job’s essential functions and may include additional leave time. It is ultimately an employee’s responsibility to re­quest a reasonable accommodation, but there are prac­tical benefits for employers who address this issue head-on.

Consider an employee who has taken 12 weeks of FMLA qualifying leave after the birth of her child. To­ward the end of the FMLA leave, the employee tells her employer that she has been diagnosed with postpartum depression and would like to discuss a reasonable ac­commodation which may include returning to work on a reduced schedule or an additional week of leave.

An employer who insists that an employee return to work at the conclusion of the FMLA leave or be fired will likely violate the ADA. Instead, the employer should engage in the interactive process by meeting with the employee to discuss the employee’s requested accom­modation; to discuss information related to the request, including doctors’ notes identifying when the employee can return to work; and to discuss alternative accom­modations. The employer’s ADA obligations may re­quire that the employer accommodate the employee’s condition by granting the employee additional leave time.

The ADA does not require leave as a reasonable accommodation where the employee’s leave request is for an indefinite period of time (e.g., leave until the em­ployee feels better). Therefore, any employee request for additional leave should be accompanied by a doc­tor’s statement identifying a date certain when the employee can return to work.

Dealing with employees who have exhausted their leave may present hidden challenges for school officials, and it is important to have evidence that the school took action to fulfill its obligations under the ADA. Remem­ber to document the interactive process and preserve any supporting documentation related to the requested accommodation, the doctor’s prognosis, and the employer’s accommodation offers.