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Out of FMLA leave–and out of luck?

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in FMLA Guidelines,Human Resources

Q. One of our employees has a recurring illness that flares up every so often. He performs well when he works, but he has missed lots of time recently. By taking a few weeks off here and there, he has used all of his paid time off (PTO) and exhausted his FMLA leave. If he has another flare-up, do we have to permit him to take time off even though it would be more than the FMLA requires or our policies allow?

A. Assuming your employee has a disability, you need to consider providing additional time off as a reasonable accommodation. Unless there is a different accommodation that would be preferable, or unless providing extra time off would cause an undue hardship, you need to provide additional leave even though the employee has exhausted all available leave under your PTO and FMLA policies.

The ADA protects employees from disability-based discrimination. A protected disability is a mental or physical impairment that substantially limits a major life activity. Given that your employee has a serious health condition that acts up periodically and prevents him from being able to work, his illness appears likely to be a qualified disability that you have a duty to reasonably accommodate.

The EEOC has begun to pay close attention to em­ployers’ leave policies as a reasonable accommodation.

According to the EEOC a “period of leave—whether for medical treatment, recovery or training to use adaptive equipment—is often the reasonable accommodation that permits a person with a disability to remain gainfully employed.” Unfortunately, the EEOC does not provide much guidance about when or how much leave must be given.

In any case, you should engage in the same analysis you would with any proposed accommodation—with the assistance of your attorney—to determine whether allowing the employee to take additional time off will impose an undue hardship on your organization. If you can permit the leave without undue hardship, it is very likely a reasonable accommodation of the employee’s protected disability and one you should make.

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