Q. An assistant manager has been out on disability leave for four months, and she's requested another two months. I want to eliminate the position. How long do I have to keep the position closed before reactivating the job title and responsibilities? —K.J., Mississippi
A. Instead of focusing on eliminating and reinstating positions, you should focus on the employee's status. Assuming that your organization is covered by the , the employee is eligible for . And once the employee has exhausted her 12 weeks of FMLA leave, it's time to consider your organization's obligation to provide leave as a reasonable accommodation under the ADA.
The ADA may require providing an unpaid leave of absence that extends beyond the FMLA's 12 weeks. In this case, you'd first need to determine whether the employee is “disabled” under the ADA. If she is disabled, the next question is: Would providing an extended (i.e., six-month) leave of absence pose an undue hardship on the firm? If not, you likely need to provide the leave.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- All periods of employment count toward FMLA eligibility
- Merely speaking about need for diversity isn't protected
- Use solid research to back business-necessity defense when deciding not to accommodate
- Confidential comp: Can we ban talk of pay?