Some employees aren’t quite ready to return fromafter their 12 weeks are up. How you handle their request can make the difference between winning and losing a discrimination lawsuit. That’s one reason you need a clear HR process for handling such requests.
Disabled employees who need a finite amount of additional time off may be entitled to more leave as a reasonable ADA accommodation.
To decide, first determine whether their condition qualifies as a disability under the ADA. Then check if the employee’s medical certification includes a return date. That’s because unlimited leave isn’t a reasonable accommodation. Finally, consider whether it’s reasonable to allow more time off based on your operational needs and the employee’s condition.
For employees who aren’t disabled but simply not yet fully recovered, you could deny all such requests.
But if you deny some and approve others, be careful that you aren’t singling out employees based on illegal factors like gender. For example, always rejecting new mothers’ extension requests but approving those unrelated to pregnancy may be illegal.
Recent case: Natausha worked as a death investigator for Dallas County. Following a stillbirth, she requested and was approved forleave and then returned to work as scheduled. Shortly after, she got pregnant again. She took FMLA leave, which began before she gave birth. Her leave was set to expire shortly after and she requested more time off. The county denied her request and she was replaced.
Natausha sued, alleging she had been denied additional leave when others sometimes received more time off.
But she never claimed she was disabled. Nor did she have any details about the other employees who allegedly received more favorable treatment. Her case was dismissed. (Johnson v. Dallas County, No. 3:12-CV-1461, ND TX, 2014)