Before you deny an employee’s request for more extended leave after FMLA expires, read this.

You know that expression about putting your money where your mouth is?

While unsanitary, I’m going to use it to make a point today about demonstrating undue hardship under the Americans with Disabilities Act.

On Friday, we discussed essential job functions under the Americans with Disabilities Act. Specifically, we confirmed that some job duties that an employee may rarely perform can still be essential.

Today, we’ll discuss another key element of the ADA analysis; namely, undue hardship.

Under the ADA, an employer must accommodate an individual with a disability where doing so will allow that person to perform the essential functions of the job, provided that the accommodation does not create undue hardship for the employer.

The burden of demonstrating under hardship falls on the employer. And, usually, that involves showing financial hardship.

That’s what one employer argued in this recent federal court opinion from North Carolina. The plaintiff has already exhausted her leave under the Family and Medical Leave Act. And, among other things, requested an additional 30 days off from work.

Extended leave may be a reasonable accommodation.

Although one appellate court recently ruled that multiple months of leave is never a reasonable accommodation, your mileage may vary across the country. The employer in the North Carolina case appeared to have summarily denied the employee’s request for an additional 30 days of leave. It claimed that between the reduced headcount “would have caused other staff to take on more work and resulted in slower project delivery time.”

Now, like financial hardship, productivity concerns can support an undue-hardship analysis. But, here’s the thing. Well, actually, I’ll let the court explain:

Here, the [defendant] contends that granting [plaintiff]’s claim would have imposed an undue hardship on the Engineering Department because the loss of a single engineer—in a department with only 3.5 full time engineers—would have caused other staff to take on more work and resulted in slower project delivery time.

Certainly the [defendant] has put forth evidence to show undue hardship. However, [plaintiff] has put forward evidence from which a reasonable jury could conclude the [defendant]’s explanation was pretextual. The [defendant] did not post a job advertisement for her position until August 2015—past the time [plaintiff] would have returned to work with her requested accommodation—and her replacement did not begin work until early 2017. This left the [defendant] with only 2.5 full time engineers—the precise number of staff that [defenddant’s witness] testified “would not have been able to meet the mission and objective of the Department”—for nearly 1.5 years. The Court will deny the [defendant]’s summary judgment motion as to this claim.

In other words, actions are better than words in supporting an undue hardship claim.

If you’re going to deny an employee’s request for extended time off from work after FMLA expires, check a couple of boxes first:

1. Communicate with the employee about his/her leave request and explore other possible alternatives that may enable the employee to continue to perform the essential functions of the job. This process is a good-faith, interactive dialogue.
2. Request medical information to support/justify the employee’s leave request. This is similar to what you did when the employee initially requested FMLA.
3. If you deny the employee’s request and end up terminating his or her employment because you claim that the employee’s absence will create productivity issues, then you need explore hiring a replacement (or act consistently with you under hardship analysis). And you may need to do that quickly.