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Must we offer time off as an ADA accommodation?

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,Human Resources

Q. We employ fewer than 50 employees. What’s our obligation under the FMLA or the ADA to bring back an employee who has missed lots of work? Since she had an Aflac policy, we suggested the time off. We never asked her to provide a medical excuse. Now we’re downsizing and she wants to return. We want to lay her off. Can we? — C.F., Tennessee

A. If your company has fewer than 50 employees, it has no FMLA obligations. The ADA, by contrast, covers employers of at least 15 employees. Under that law, you may be required to provide disabled employees with a leave of absence as a “reasonable accommodation.”

There is no bright-line rule as to how long the leave must be, but you’re not required to provide leave indefinitely. In such cases, inform the employee how much leave is permissible and how long her position will be held open.

Even if your employee is deemed “disabled” under the ADA, you still can include her in a downsizing if you would have done so regardless of any disability. Applying your nondiscriminatory criteria for the reduction in force—performance history, elimination of department, etc.—you must determine whether she would have been laid off if she were still working for the company. 

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