After FMLA, consider granting more ADA leave

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in Discrimination and Harassment,Human Resources

What should you do if an em­­ployee has used up all her available FMLA and personal leave and still needs periodic time off? If she has a disability, you may be required to let her take more leave as a reasonable accommodation under both the ADA and the New Jersey Law Against Discrimination (NJLAD).

How much extra time you provide depends on the employee’s needs and your resources and staffing capabilities.

Recent case: Donna Brooks has sickle cell disease, which causes intermittent debilitating pain episodes. They must be treated with bed rest or hospitalization. Brooks worked for the New Jersey Motor Vehicle Commission and had to take lengthy blocks of leave when the pain in her bones flared up.

One year, she used a total of about 15 weeks of leave in approximately monthly increments.

Since she had effectively used up her 12 weeks of FMLA leave, she suggested that additional time off would be a reasonable accommodation under the ADA and NJLAD. For a while, the state granted Brooks periodic time off when her condition flared up. But then she was ter­­mi­nated after one of her supervisors argued that the commission didn’t have enough backup to cover the absences and still get its work done.

She was eventually rehired for another, less demanding position, but by then she had filed a lawsuit.

The state requested dismissal, but the court said her reasonable-accommodations claim could go forward. It noted that the commission had to do more than say work wasn’t getting done because of her absences. It has to show that staffing levels and Brooks’ pattern of absences taken together made it unreasonable to give her time off. (Brooks v. State of New Jersey, No. A-3834-09, Superior Court of New Jersey, Appellate Division, 2011)

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