How much extra leave is reasonable for an employee who has exhausted FMLA but is not yet capable of returning to work? Does an employer have to keep the absent employee’s job open?  What medical evidence is needed?   How much interactive dialogue is enough?  What about an employee is who is unreasonable and/or demanding?

A recent opinion from the Eighth Circuit provides helpful guidance about these and other problems employers face when deciding whether extended medical leave is a reasonable accommodation for an employee with a serious medical condition who is not yet capable of returning to work. See Brunckhorst v. City of Oak Park Heights, (8th Cir. 2/4/2019).

Continue Reading Eighth Circuit Case Provides Guidance on How to Handle the Vexing Problem of Extended Medical Leave as a Reasonable Accommodation

Fixed or no-fault leave policies were once considered easy way to manage attendance and long term leave of absence issues.   Once the employee reaches the maximum number of absences, or is gone the maximum number of weeks on medical leave, the employee is terminated; no questions asked, no exceptions.   The benefit of these kinds of policies is that they remove discretion from the decision makers and therefore result in the same treatment for all employees. In more recent years, these types of policies have fallen out of favor.   Employers have found that  applying a no-fault policy blindly may conflict with its obligation to engage with an employee to find a reasonable accommodation for a disability.   The EEOC is strongly opposed to no fault policies. Its Enforcement Guidance takes the position that application of a no fault leave policy to an employee with a disability is a per se violation of the law.  However, as the recent case of Cash v. Siegel-Robert, Inc.(6th Cir. 12/3/2013) shows, there is no reason employers cannot maintain a no fault policy so long as it has some flexibility built in to account for employees with disabilities. Siegel-Robert, Inc. (SRI) had a policy that resulted in automatic termination if an employee was unable to work for six months within any 12 month period.   SRI’s policy also allowed employees who used up the six months to request an extension.   The policy said an extension would be considered so long as the request was received before the termination would take effect, and if it was supported by medical documentation showing a return to work on a date certain or within a reasonable period of time.  Cash was scheduled for back surgery on March 18. Because Cash’s job was physically demanding, his doctor told him he may not be able to work for a full year following surgery. SRI granted Cash job protected leave from March 18 until September 17, pursuant to its policy.  At the beginning of his leave period, Cash received a copy of SRI’s policy.   Even though Cash knew he may be off work for one year, he did not ask the HR Manager how to obtain an extension of medical leave beyond six months; nor did the HR Manager tell him.   By August 17 Cash thought he could return to work and asked the doctor to release him.   The doctor wrote in the chart that he thought Cash would be able to return to work in a month. A follow-up visit was scheduled on September 14.   For some reason Cash could not keep the September 14 appointment. He rescheduled the appointment for September 21, at which time the doctor gave him a work release with restrictions. Cash presented the work release to the HR Manager on September 21. “Thanks”, responded the HR Manager, “but unfortunately you were terminated three days ago because your medical leave expired.” SRI did not offer Cash another position or part time employment, nor did he ask whether those were available. He simply left the plant.   Cash ultimately sued SRI claiming that it violated the ADA in failing to accommodate his restrictions and in terminating his employment.   Notably, after Cash filed his lawsuit, the company adopted the practice of notifying employees on long term leave before their leave expired.   The Court granted SRI summary judgment. The crucial fact was that Cash took no action before the expiration of the no-fault leave period to ask for an extension of his leave. Even though SRI later changed its practice, the Court did not impose on the company an obligation to notify the employee about the expiring leave as the date approached. The Court also ruled that SRI had no obligation to engage with Cash about potential accommodations for his work restrictions because the termination was effective before Cash presented the restrictions to HR.   An important take-away from the Cash case is that a no-fault system can be used without legal liability, so long as there is a safety valve that permits employees to obtain additional leave time if necessary.   While it was a good idea for SRI to change its practice and notify employees about expiring leave, this case also reinforces the fact that employees themselves have obligations to keep track of and follow the company’s policies with respect to leave.   At least in this court, ignorance was not an excuse.