I’ll hang out for a bit while you grab the maximum-leave policy in your employee handbook

Don’t have one? Good. You can skip today’s post.

As for the rest of you, say a silent prayer to whatever higher power you believe in, email me a thank you, and read on…

Yesterday, some of my buddies and I delivered the second of two continuing legal education sessions entitled Navigating the Use and Abuse of the FMLA. During each session, we talked a bit about “maximum-leave policies.” An example of a maximum-leave policy is one that affords FMLA-eligible employees their 12 weeks of leave in a 12 month period but stresses that if an employee will lose his or her job by not returning to work the day after FMLA leave expires.

Those policies stink!

Why? Consider a recent lawsuit the EEOC filed against a Delaware non-profit. From the EEOC press release:

According to the EEOC’s suit, [the employer-defendant] unlawfully enforced a fixed leave policy that did not provide reasonable accommodations for qualified individuals with disabilities when, as a matter of course, it refused to provide leave beyond the 12 weeks allowed under the Family Medical Leave Act (FMLA) and fired those employees when their leave expired. The EEOC charged also that [the employer-defendant] denied other forms of reasonable accommodations that would have allowed qualified individuals with disabilities to remain employed, such as reassignment to vacant positions. Instead, the EEOC said, [the employer-defendant] also placed those employees on FMLA leave and terminated them as well when their leave expired.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability. The ADA also requires an employer to provide reasonable accommodations, such as modifying leave policies to grant additional unpaid leave or transferring an employee to a vacant position for which the employee is qualified, unless the employer can prove it would be an undue hardship. 

Got that?

Indeed, the EEOC takes the position that a request for leave for one’s own serious health condition under the FMLA is tantamount to a request for a reasonable accommodation under the ADA. While leave under the FMLA is a reasonable accommodation, employers should also consider what will happen when the FMLA leave ends. Indeed, the when an employer designates FMLA leave, it has the option of requiring not only that the employee provide a fitness-for-duty certification prior to returning to work but also certify that the employee can perform the essential functions of the job with or without accommodation.

If the employee can return with an accommodation, then have a good faith, interactive dialogue with the employee about what reasonable accommodation(s) may work. And, remember that additional leave — beyond the 12 weeks of FMLA — may be a reasonable accommodation too.

Or, if you like lawsuits, forget about it. Or better yet, keep that maximum-leave policy. That’ll show ’em!