Under the Americans with Disabilities Act (ADA), an employer must consider granting unpaid leave as a reasonable accommodation if the employee requests the accommodation.
Many employers will only provide leaves that they are required to provide under the Family Medical Leave Act (FMLA) or the California Family Rights Act (CFRA) without considering that they may have to require additional leave under the ADA.
An unpaid leave of some limited duration, however, may be considered a reasonable accommodation in most cases.
When granting such a leave as an accommodation, have a conversation with the employee and prepare to be flexible. What is reasonable will depend on the nature of your business and how the employee’s position fits into your organization. A job description will be helpful in determining how the need for leave is the best accommodation you can provide for an employee who cannot perform the essential functions of their position.
You cannot make this determination without talking to the employee, gathering medical information, and making an informed decision about what works best for your company. The bottom line is to work with the employee and the medical caregiver to determine how long an employee needs to be off work, and make the best efforts, within reason, to accommodate the necessary leave for employees who qualify for protection under the ADA.
An indefinite leave of absence, one from which neither the employee nor his or her doctor can provide a date upon which the employee can return to performing the essential functions of the position, will probably be considered an unreasonable accommodation under the ADA.
There have been lawsuits recently against employers who did not consider unpaid leave as an accommodation and the EEOC ruled in favor of the employee, so employers should be mindful when considering these requests, and not violate the ADA.
Lauren Sims is the author and a Principal HR Consultant with eqHR Solutions.
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