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Time off beyond FMLA may be reasonable accommodation

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in Employment Law,FMLA Guidelines,Human Resources

The FMLA gives eligible employees up to 12 weeks of unpaid leave per year. Employers are free to discharge employees who cannot return to work after that time is up—that’s legal under the FMLA.

But before you fill out that pink slip, consider whether the employee may be disabled under the ADA. If so, he may be entitled to more time off as an accommodation.

The FMLA allows leave for a serious health condition, which may or may not be a disability under the ADA. That’s because “serious health condition” and “disability” aren’t synonymous. Under the ADA, disability is defined as a condition that substantially limits a major life activity.

Thus, a disabled employee (even one who wasn’t eligible for FMLA leave because he hadn’t worked for his employer for a year or more, or for 1,250 hours in the last year) may be able to take time off.

Recent case: Robert Hines worked for Harrison Township for 25 years before being diagnosed with depression and anxiety. His doctors advised him to take some time off. He was unable to return for seven months. The township terminated him after he used up his FMLA and sick leave entitlements.

Hines sued, alleging an ADA violation. He argued that extra time off was a reasonable accommodation. The township argued that regular attendance was an essential function of Hines’ job, and therefore being unable to work for months on end meant he couldn’t perform those essential functions.

The court said Hines should get a trial. It concluded that a disabled employee who needs time off so that he can return to work sooner might be entitled to that time as a reasonable accommodation. Each case must be judged individually. (Hines v. The Township of Harrison, No. 07-0594, WD PA, 2007)

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