Do you have a draconianpolicy that requires automatic termination for employees who use up their entitlement before being cleared to return to work? If so, you’re playing with fire.
That’s because the ADA may provide additional time off for employees who aren’t quite ready to return, but whose doctors have provided a tentative return date that falls after those 12 weeks ofleave have expired.
Recent case: Sujla took several FMLA leaves for arthritis and a kidney infection. During her time off, she spent time in the hospital and underwent extensive treatment. When she had used up almost all 12 weeks of FMLA leave, she asked her doctor to estimate a date when she could return to work full time. He did and she gave her employer a note indicating she needed a few more weeks off.
The employer terminated her, reasoning she had used up her FMLA leave. Meanwhile, it interviewed replacements and hired someone to start working a few days after the return date Sujla’s doctor had specified.
Sujla sued, alleging she was disabled and that, because she had a specific return date, extending her leave would have been a reasonable accommodation.
The court said her case could continue. She will have to persuade a jury that her conditions, which flare up periodically, render her disabled under the ADA and that a few more weeks off would have been a reasonable accommodation. That shouldn’t be hard to prove, given that the employer’s replacement hire didn’t start until after Sujla would already have been back at work. (Maharaj v. California Bank & Trust, No. 2:11-CV-00315, ED CA, 2012)
Final note: You don’t have to provide more time off if it’s obvious the employee doesn’t have a return date and won’t be back for the foreseeable future.