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Make sure handbook spells out how leave works as a reasonable accommodation

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in FMLA Guidelines,Human Resources

Disabled employees who need time off to deal with a disability and who don’t have FMLA, sick or vacation leave may still be entitled to more time off. That’s because the ADA allows employees to take additional time off as a reasonable accommodation.

Be sure your employee handbook accounts for this possibility.

For example, you could specify that employees may request unpaid leave once they have exhausted other options in certain increments like 30 days. You can add that employees who don’t return after a 30-day leave is up will be considered as having abandoned their positions (consistent with a separate policy setting job abandonment rules). That puts the burden on the employee to seek out a longer leave as a reasonable accommodation or risk losing his or her position.

Recent case: Dillard, a truck driver, had been with Swift Trans­­por­­tation just a short time when he requested time off for “emotional distress.” His doctors suggested he needed 90 days off, but company policy only allowed for an unpaid leave of absence of up to 30 days.

He wasn’t eligible for FMLA leave since he hadn’t worked for the company for a year or more. Nor was he eligible for time off under the California Family Rights Act.

That meant Dillard’s only option was to use any other leave the company provided and ask for a reasonable accommodation. The company said he could use the 30 days of unpaid leave.

The company handbook stressed the importance of the employee keeping in touch with his manager during any type of leave and ­giving notice of any change in the return date. The policy also stated that if employees did not return to work by the scheduled return date, employees would be deemed to have voluntarily resigned if they didn’t communicate with their supervisor or the company within three days.

Dillard was terminated when he didn’t show up for work after his leave expired.

He sued, alleging he should have been accommodated with the full 90 days off his doctor recommended.

The court sided with Swift Trans­­por­­tation. It explained that a policy allowing for 30 days off could certainly be a reasonable accommodation—and that if Dillard needed more time, he should have asked for that before his leave expired. The company could then have considered the request and perhaps approved more time off or rejected the request as unreasonable. But since Dillard didn’t ask, the handbook attendance rules applied and allowed his termination. (McNeley v. Swift Trans­­por­­ta­­tion, No. B243769, Court of Appeal of Cali­­fornia, 2nd Appel­­late District, 2013)

Final note: Many employers still don’t realize that they need to consider time off as a reasonable accommodation. That could take the form of intermittent leave, similar to what’s allowed under the FMLA, or of a block of time off.

Just be sure to ask employees’ doctors to specify whether the requested time off is indefinite. If so, you can deny the request; courts have held that an indefinite leave simply isn’t reasonable while other periods may be reasonable accommodations.

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