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Consider ADA if sick worker needs more leave

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in Discrimination and Harassment,Human Resources

Employees who are temporarily unable to perform their jobs because of a disability are entitled to reasonable ADA accommodations. You’ll want to think about starting the interactive accommodations process as soon as a potentially disabled employee asks for more than the usual amount of leave.

Recent case: Justin went to his physician when he began having debilitating anxiety attacks. The doctor prescribed medication and suggested taking a few weeks off. Justin’s boss approved the leave.

When Justin was scheduled to return to work, he requested and was granted more time off. But the third time he asked for additional leave, his employer simply told him he was being discharged.

Justin sued, alleging disability discrimination.

The employer argued that since Justin hadn’t provided any estimate of when he could return or evidence that he would again be able to perform his job any time soon, he wasn’t entitled to protection.

The court disagreed. It told the employer that the right way to gather the relevant information about Jus­­tin’s prognosis and condition was during the interactive accommodations process—which should have started as soon as Justin asked for more leave. The court said the decision to simply fire him instead amounted to refusing to engage in the interactive accommodations process. That’s disability discrimination. (Prock v. Tamura Corporation of America, No. E054185, Court of Appeal of California, 2013)

Advice: When a potentially ill employee requests leave, the first thing to do is determine if he’s entitled to FMLA leave. If not (or if he has exhausted his FMLA entitlement), consider offering time off as a reasonable accommodation. Ask whether his doctor can estimate when he’s expected to recover. Then decide if the extra time is reasonable.

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