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No need to accommodate when absence goes beyond all paid, unpaid leave

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in Discrimination and Harassment,Human Resources

You have probably read that once a disabled employee has exhausted his FMLA and other sick leave, you should still consider offering a brief leave extension as a reasonable accommodation. That’s true to a point.

However, once you have allowed additional leave and the employee still isn’t cleared to return to work, it may be time to terminate him despite his disability.

Recent case: Horace, a custodian for the Fresno school system, developed several health problems, and used up all his paid and unpaid leave. His doctors told him he would be off for many months. Because he needed to work just 30 more days before he was eligible to retire, the school system invited Horace back.

However, the very next day, he had a stroke. Lacking any more leave, he was terminated.

Horace sued, alleging disability discrimination. He claimed he should have been accommodated with a few more weeks of leave, presumably so he could retire.

The court dismissed his lawsuit. It reasoned that, because Horace’s stroke left him unable to work for an indefinite period, he wasn’t a qualified disabled individual under the ADA. Plus, the school system had already provided more time off than it was legally required to. No accommodation was due. (Brown v. Fresno Unified School District, No. 1:12-CV-01597, ED CA, 2013)

Final note: For more on this case, see "Court: Only employee—not his spouse—can sue for disability discrimination."


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