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Use common sense to judge length of leave

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in Employment Law,Firing,FMLA Guidelines,Human Resources

You’re not alone if you have struggled to decide how much time off to allow a dsabled eimployee. It’s one of HR’s trickiest issues.

For example, suppose a disabled employee has exhausted the allotted 12 weeks’ FMLA leave for the year. You know you can discharge that employee without violating the FMLA. But does the firing violate the ADA?

It might—if all the person needs is a little more time off due to the disability. But that’s the tricky part. How much more time do you have to allow, and when can you say enough is enough?

Here’s some help: Allow the employee any additional time covered by accumulated sick, vacation and other leave. Then get his or her doctor’s assessment of how long it will be before the employee can return.

Now look at the total amount of time the employee has already taken off. If the length seems unreasonable and if it will cause real hardship for your organization, say “no.” On the other hand, if the doctor says the employee will be able to return soon, consider setting a reasonable final return date. But if the doctor can’t even give an estimate, cut the person loose.
Recent case: David Hamm worked for ExxonMobil for over 30 years until he began to suffer a series of health setbacks, including a bout with cancer. Over three years, he exhausted all his sick, vacation and other leave entitlements.

The company scheduled him to return to the only open position available within his medical restrictions when he learned the job required extensive overtime and heavy labor. His doctors asked for another month off as a reasonable accommodation. Instead, ExxonMobil placed Hamm on what remained of his FMLA leave and told him he had to return after he exhausted it.

He couldn’t and ExxonMobil fired him. By then, he had taken a total of three years’ leave. Hamm sued, alleging he should have been accommodated with more time off.

The 7th Circuit Court of Appeals disagreed and dismissed the case. It reasoned that a short additional leave after having exhausted all leave time could be a reasonable accommodation, but three years was simply too long to expect from an employer. (Hamm v. ExxonMobil, No. 06-1692, 7th Cir., 2007)  

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