Archive for the ‘Best Practices’ Tag

Are You Violating ADA Requirements by Denying Leaves?

According to the American with Disabilities Act (amended to American with Disabilities Act Amendments Act (ADAAA)), employees who request an extension for leave due to medical reasons cannot be terminated regardless of the length of leave. The Equal Employment Opportunity Commission (EEOC) prohibits leave policies that terminate employees who exhaust leave benefits because it is a violation the ADAAA reasonable accommodation clause.

 The Family and Medical Leave Act (FMLA) provides eligible employees twelve workweeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. In cases where an employee with an exasperated leave benefit files an extension, the ADAA requires employers to evaluate the request to determine if additional leave would impose an undue hardship on the business. The employer must analyze the impact of the employee’s initial 12-week absence to determine how much additional leave is needed. Furthermore, employers are not required to grant indefinite leave if they receive notice from the employee or the employee’s physician stating that the employee will never be able to return to work.

As per EEOC regulations, if an employer cannot hold the employee’s job open due to undue hardship, the employer must then determine whether there is an equivalent vacant position that the employee is qualified to perform. If the employee could be re-assigned to an equivalent position without incurring an undue hardship then the employer should extend the leave and assign the employee to the open position.  If an equivalent position is not available, the employer must look for a vacant position at a lower level. If an employee is able to return to work but unable to perform an essential function of the original position, even with a reasonable accommodation, the employer may consider re-assignment and possibly separation.

 HR Best Practices:
• Train managers on FMLA policies so that work-hours can be analyzed appropriately if an employee raises an ADA related concern.
• Post proper notices and consider employee requests for additional leave or special consideration for a reasonable accommodation.
• Promptly respond to employee requests regarding leave extensions, special accommodations, or any requests related to FMLA or ADA.