As the EEOC continues to focus on the use of unpaid leave beyond policy limits as a potential reasonable accommodation and employees continue to request leave extensions, I am frequently asked: “How do I know when enough is enough?” Unfortunately, the determination of an undue hardship is a factual issue, and the only way to know for sure is when the issue is decided by a jury. Employers do not currently have the luxury of a bright line rule – although I suspect, if presented with that mythical magic line, employers would not necessarily be thrilled about its location in the sand. See, for example, EEOC v. Journal Disposition Corp., 2011 WL 5118735 at *3 (W.D. Mich. 2011) (“Leave requests are not generally found to be unreasonable as a matter of law unless they are of indefinite duration or are in excess of one year.”)
Why Is There No Bright Line Rule?
Consider a hypothetical nurse with a lower back injury who requires a complex surgery. For the sake of simplicity, assume she is not eligible for leave under the FMLA. The nurse provides documentation from her physician stating she must be off work for four to eight weeks. Is the requested accommodation reasonable, or does it create an undue hardship? The answer varies dramatically depending upon the nurse’s essential job functions and available staffing, among other factors. If the nurse is more of a generalist and the hospital is large, there may be sufficient staffing with existing part-time and contingent staff throughout the facility to meet patient needs while the nurse needs to be off of work. However, if the nurse in question is a skilled neonatal intensive care nurse and the hospital does not have other nurses who can meet the specialized needs of micro-preemies, the requested leave may create an undue hardship.
Stop, Think and Justify
EEOC Commissioner Chai Feldblum has described the ADA as a law that requires employers to stop, think and justify. Employers facing an employee’s request for a leave of absence (or an extension of an existing leave) should take some time to consider the most likely business ramifications to occur if the request is granted or denied and to document those business effects prior to making any formal determination.
Questions for consideration include, but are not limited to:
- Has the employee provided sufficient documentation supporting the medical need for a leave of absence?
- Is there any need for an independent medical examination by a physician of the employer’s choosing? (Remember, such examinations are expensive, rarely result in resolution in and of themselves and, in some instances, may be considered retaliation or an impermissible medical inquiry under the ADA.)
- How long has the employee been employed?
- How much leave is available pursuant to the employer’s leave of absence policy? Is the requested leave close to that permitted by the employer’s policy?
- What is the anticipated impact on business operations if the requested leave of absence is approved?
- What are the employee’s essential job functions, and who will perform those functions during the employee’s leave?
- Is a leave of absence the only effective accommodation? Can any other workplace changes be made that would permit the employee to perform his or her essential job functions with or without accommodations?
- Is attendance integral to the employee’s job function? Can the employee perform any of his or her essential job functions (or those of a vacant position for which he or she is qualified) from home?
- Is there a vacant position for which the employee is qualified that would enable the employee to continue working rather than taking a leave?
If the employee has already been out of work on a leave of absence and has asked to extend the leave, consider:
- How long has the employee been on leave?
- How have business operations been impacted during the employee’s leave of absence to date?
- What costs have been incurred in covering the employee’s essential job responsibilities during the employee’s leave of absence to date (overtime, training of temporary employees, agency fees, etc.)?
- How have the employee’s essential job functions been covered to date, and is it reasonable to continue using that same method of coverage for the requested extension? If not, why not?
- What is the anticipated impact on the employer’s business operations if the requested extension is granted?
- What additional costs are anticipated if the requested extension is granted? How do those costs compare to the costs that will be incurred if the leave is denied?
- Other than the fact that the employee has already been on a leave of absence, what additional issues or concerns will result from the employee remaining on leave for an additional time period (i.e., what is different now)?
- Has the employee provided documentation not only supporting the need for an extension but also concerning his or her anticipated return to work date?
- Does the employer have any reason to believe that the documentation provided by the employee’s physician is incomplete or inaccurate or that the employee will be unable to return to work as indicated?
- If the additional leave is granted, is the employee likely able to return to work in the reasonable future? When?
- How long would it take to post and fill the employee’s position and train the new hire? Is the employee anticipated to return to work sooner than that?
- Is attendance integral to the employee’s job function? Can the employee perform any of his or her essential job functions (or those of a vacant position for which he or she is qualified) from home?
- Is there any vacant position for which the employee is qualified and to which he or she may be transferred that meets any existing work restrictions?
- Is there any vacant position for which the employee is qualified and to which he or she may be transferred to finish the additional leave that will allow the employer to fill the employee’s position now, grant the extension and return the employee to the vacant position upon his or her return?
While many of these questions are straightforward, others are not. A thorough analysis of these and other questions can help employers feel more confident in navigating through the reasonable accommodation process.
If we can be of assistance with reasonable accommodation issues or other employment matters, please feel free to contact Jennifer H. Gonzalez at jgonzalez@wp.hallrender.com or (248) 457-7840, Stephen W. Lyman at slyman@wp.hallrender.com or (317) 977-1422 or your regular Hall Render attorney.
