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On-demand leave isn’t reasonable accommodation

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in Employment Law,FMLA Guidelines,Human Resources,Leaders & Managers,Management Training

Some employees think that any disability that periodically acts up entitles them to unlimited time off. Sometimes, courts view extra time off as a reasonable accommodation, but there are limits.

For example, disabled employees might be entitled to extra days off after they use up their FMLA eligibility. But employers have a right to expect disabled employees will come to work often enough to perform the essential functions of their jobs.

Recent case:
Cathi Turner worked as a customer service representative for a health insurer. In 1996, Turner had a serious car accident that left her with a back disability. Her condition flared up occasionally, and her doctors believed that she might eventually become totally disabled.

Turner was fired for violating procedures for calling in sick when she took intermittent FMLA leave. That’s when she first argued that she was disabled and entitled to extra time off as a reasonable accommodation.

She sued and told the court her employer should have known she was disabled since she was approved for intermittent FMLA leave.

The court didn’t see it that way. Instead, it said unlimited time off at the disabled person’s discretion is not a reasonable accommodation. Reasoning that’s what Turner essentially said she was entitled to when she failed to call in, the court dismissed her case. (Turner v. Health Care Service, No. 06-C-2399, ND IL, 2009)

Final note: Don’t assume that every serious health condition under the FMLA is also a disability under the ADA. The most likely crossover occurs when employees have a serious health condition that qualifies them for intermittent leave. Therefore, think about reasonable accommodations in conjunction with intermittent leave.

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