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What Should an Employer Do when an Employee Requests Further Leave After Exhausting FMLA Leave?

Posted by Barbara J. Zabawa | Aug 17, 2016 | 0 Comments

The Center receives these types of questions frequently.  In a recent case, Golden v. Indianapolis Housing Agency, No. 15-cv-00766 (D. Indiana), the U.S. government issued a statement of interest explaining the government's interpretation on what an employer should do when an employee who has exhausted family leave because of a medical condition asks for additional unpaid leave so the employee can fully recover.  In the Golden case, the employee was diagnosed with breast cancer and requested leave under the Family Medical Leave Act (FMLA).  When the 12-week FMLA leave expired, the employee was still unable to return to work because of her cancer and treatment, so she asked for extended medical leave from her employer.  The employer had an unwritten policy and practice to allow those with medical conditions to request an additional four weeks of unpaid leave.  If an employee is unable to return after the 16 weeks of leave, they are automatically terminated.  The employee in this case was still unable to return to work after the four-week extension, and wrote her employer requesting unpaid leave of absence “per city policy.”  The employer had a written policy that allowed six months of unpaid leave for general leaves of absence.  The employer denied the request and terminated the employee. 

The employee sued under the Rehabilitation Act of 1973, Section 504.  The analysis under that act is similar to the Americans with Disabilities Act (ADA).  The government said the employer in the Golden case should have considered the employee's request for additional unpaid leave.  Permitting the use of unpaid leave is a form of reasonable accommodation when necessitated by an employee's disability.  If the leave request is reasonable, the employer should grant it unless the employer can show that there is another effective accommodation or that granting additional leave would cause undue hardship under the circumstances. 

Here, the employer had an automatic denial of the leave request without considering whether the additional leave would cause an undue hardship.  Plus, it allowed longer leave for non-disability related requests (up to six months).  According to the government, the employer should have considered the employee's request and not fired her.  The government noted that an employer is not required to grant “indefinite” leave, but an employee need not provide an exact date of return either. 

Admittedly, the government's position requires the employer to conduct a difficult balancing act between allowing reasonable leave requests and not waiting forever before an employee can return to work.  The lesson to be learned, however, is that employers who face similar situations should consider all requests for leave and not automatically deny such requests.  If a leave request would create an undue hardship, the employer should diligently document that.  

One other issue raised by the government in the Golden case is that under the ADA, it is inappropriate for an employer to consider whether the employee could perform the essential functions of her job during the time period she requested disability-related leave as a reasonable accommodation.  Instead, the correct assessment of whether an employee is a qualified individual should be made as of the date the employee anticipates returning to work – i.e., at the end of the leave of absence the employee is requesting.  Thus, if an employee requests a leave of absence as a reasonable accommodation to his or her disability, the employer must decide whether the employee will be able to perform the essential job functions at the end of the leave, not during the leave. 

Of course, this case or the government's interpretation of the ADA does not address situations in which the employee has performance or conduct issues.  However, when the issue about whether an employee can perform the job relates to a disability only, employers would be wise to consider the government's position articulated in the Golden case.  Employers interested in reading the full statement by the government can do so by clicking here.

About the Author

Barbara J. Zabawa

Attorney Barbara J. Zabawa started the Center for Health & Wellness Law, LLC after she recognized a need for legal services that shared a mission with providers to improve patient outcomes and population health, encourage wellness, protect patient interests in choice of provider and treatment options, provide holistic care, and expand information access. Attorney Zabawa has 20+ years of experience in the health care field, first receiving her Master's in Public Health from the University of Michigan before attending law school at UW Madison, where she graduated with honors in 2001. From 2003-2005, Ms. Zabawa clerked for the Honorable Barbara B. Crabb in the United States District Court for the Western District of Wisconsin and worked on a variety of matters, including employment, patent infringement, civil rights, and contract matters. She also served as a Skadden Fellow representing health care consumers on both the national and local level by helping consumers navigate private insurance coverage issues and advocating for their interests as a Funded Consumer Advocate at the National Association of Insurance Commissioners (NAIC). Attorney Zabawa has worked for a large health insurance company providing advice on the Affordable Care Act as well as HIPAA Privacy and Security compliance. In addition, she was in private practice at a large regional law firm for seven years, where she was a shareholder, led her firm's health care team and served as its HIPAA Privacy Officer. While in private practice, she handled a variety of health law matters, such as compliance with fraud and abuse laws, professional scope of practice matters, state licensing issues, HIPAA privacy and security compliance, Medicare and Medicaid reimbursement and conditions of participation compliance, Accountable Care Organization and other joint venture agreements, employment agreements, as well as business litigation. Attorney Zabawa is the author of the forthcoming book "Rule the Rules of Workplace Wellness Programs." She is a frequent speaker and writer both nationally and regionally on workplace wellness program compliance, the Affordable Care Act, fraud and abuse issues and HIPAA compliance. She has published several law review articles in the practice of health law and has been interviewed by TV, radio and print media regarding wellness, health reform, and HIPAA. She is a Board Member for Rogers Memorial Hospital Foundation, Board President for the Wisconsin Alliance for Women's Health, Board Member for Health Promotion Advocates, and currently serves on the Oversight Advisory Council for the Wisconsin Partnership Program and the State Bar Health Law Section Board. Education JD - University of Wisconsin Law School, cum laudeMPH - University of Michigan School of Public HealthBA - Lawrence University Admitted to Practice: • New York• Wisconsin• Federal District Court of the Western District of Wisconsin• Federal District Court of the Eastern District of Wisconsin• Court of Appeals for the Seventh Circuit• United States Supreme Court

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