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Want to offer additional leave for disability? Be sure policy is drafted in your favor

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in FMLA Guidelines,Human Resources

By now, you no doubt know that instantly firing someone who isn’t ready to return from FMLA leave may land you in legal trouble. That’s because if the employee also qualifies as disabled under the ADA, he may be entitled to more time off as a reasonable accommodation (provided there’s a reliable estimate for a return date).

Some employers have addressed this situation by crafting a policy that provides some additional leave. If you decide to do that, make sure you get legal help creating the actual policy.

It needs to include a requirement that the employee must affirmatively request the extra time off. That way, the ball is in his court—and the benefit doesn’t create an entitlement.

Recent case: Eugene for years has walked with a cane, but his physical problems never interfered with his ability to work. That all changed when he was caught in a bus door and dragged a considerable distance as the bus pulled away from the stop. He took FMLA leave to recuperate.

The company handbook, which Eugene acknowledged he had re­­ceived, included a provision stating that employees who could not return to work after FMLA leave expired would be terminated unless they received an extension or were eligible for additional unpaid leave. The handbook explained that employees could have an additional 12 months of unpaid leave, with restoration to their job at the end of the leave.

But the handbook also specified that employees had to initiate a request for this additional time off before the company would consider it.

Eugene first returned to work with restrictions and worked part time long enough to requalify for FMLA leave. He used that leave when he had to have back surgery.

This time, his doctors said he could not return to work and did not provide an estimate for when he would be able to return. He became wheelchair bound and his doctors said he was totally disabled, with no end in sight. He was then terminated.

Eugene sued, alleging failure to accommodate with additional time off.

The court tossed out that claim. It found that Eugene never asked for an accommodation of any sort, including more unpaid time off. Since the policy required him to ask for leave, he hadn’t initiated the ADA’s interactive accommodations process, meaning he could not now claim his employer violated the ADA by firing him following FMLA leave.

The court also noted that Eugene probably wasn’t eligible for extra time off anyway, since he didn’t have a clear or even estimated return date. That’s a requirement for receiving more time off as a reasonable accommodation. (Laigon v. Philadelphia Mental Health Care Corp., No. 11-3339, ED PA, 2013)

Final note: Your employee handbook can help minimize your litigation risk. Include any leave policies. Specify exactly what the employee is required to do. Provide specific directions and contact information for requesting leave.

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