Q. Our company has a leave-of-absence policy that states that any employee on leave longer than 12 months will be terminated. Our company’sinsists on this policy out of what they call business necessity. Are we opening ourselves up to risk?
A. The short answer is “yes.” This type of inflexible leave policy has long been frowned upon by the EEOC and has resulted in EEOC legal action against employers.
The EEOC’s position is that the ADA—the federal disability discrimination law—prohibits rigid leave policies, and employers must consider ADA accommodations on a case-by-case basis. That being said, in a decision favorable to employers, the 10th Circuit Court of Appeals recently held that an employer did not have to offer a six-month leave as an accommodation and could cap its leave policy at six months.
Nevertheless, the prudent course of action is to continue to avoid inflexible leave policies and to engage in an interactive process for all leave and accommodation requests.
Megan L. Anderson is an attorney with Gray Plant Mooty’s Employment Law Practice Group in Minneapolis. Concentrating her practice in employment law counseling and litigation, she regularly advises employers and provides training on a variety of employment law issues. Contact her at firstname.lastname@example.org or (612) 632-3004.