My Employee Exhausted Their Protected Leave. Now What?

Oregon has many laws that provide employees with protected leave, meaning that employees are entitled to be restored to their former job once they return. These laws have a limit on the amount of leave an employee can take, typically 12 weeks, and still have job protection. However, there are situations where an employee has exhausted their protected leave and requests additional leave. In those situations, employers often wonder what to do: Are they required to provide additional leave? Is additional leave protected? Can they terminate? As with almost everything in Human Resources, the answer is “it depends.”

The Americans with Disabilities Act (ADA)

If an employee exhausts all their applicable protected leaves, there is still one possibility of additional protected leave depending on the reason for the employee’s leave, and that is the ADA. While the ADA requires employers to provide reasonable accommodations for employees with disabilities, employers sometimes overlook that a leave of absence, or adjustments to attendance standards, may be a reasonable accommodation.

If an employee is unable to return due to their own serious health condition, employers are generally obligated to engage in the interactive process and let the employee know that they may be able to take additional leave as a reasonable accommodation under the ADA. Not engaging in the interactive process is extremely risky due to this obligation. It’s important to note that the ADA only applies to an employee’s own disability. This means that if an employee is unable to return to work due to needing to care for a family member or requesting additional parental leave, the ADA does not apply.

Is Additional Leave Required?

This does not mean that you automatically have to provide additional leave. Employers are permitted to request medical certification to substantiate the employee’s disability and their limitations due to the disability. Additionally, while employers must participate in the interactive process, employees are not required to. They can choose not to respond to the employer or not to submit medical certification. If the employee does not engage in the process, then the process ends.

However, let’s say that the employee does participate. They request additional leave and return their medical certification. What are the next steps? Are they entitled to additional leave? Is there a certain amount of leave you have to provide? Once again, the answer is “it depends.” In this case, it depends on whether providing leave is reasonable and how much leave you can provide before it becomes unreasonable. Since reasonable accommodations must be evaluated on a case-by-case basis, there isn’t a blanket amount of time that an employer can place on leave as an accommodation. For example, it would be risky to state that you can only provide 30 days of leave as a reasonable accommodation regardless of the circumstances. Depending on the employee’s position and the circumstances of your company, 30 days may be an unreasonable accommodation, or more than 30 days may be reasonable.

When Does Leave Become Unreasonable?

Then there’s the question of “When does leave become unreasonable?” The answer is when providing additional leave as an accommodation results in an undue hardship. Whether an accommodation presents an undue hardship depends on the following factors:

• Significant Expense:
  • The specific cost of the accommodation in relation to the size and financial resources of the company;
  • The cost of the accommodation in relation to the company’s entire operating budget.

• Significant Disruption:
  • Inadequate coverage for essential operations;
  • Requiring multiple employees to substantially alter essential job functions on an ongoing basis;
  • Creating potential safety hazards or compromising established procedures.

• Significant Negative Impact on Other Employees:
  • Increased workload;
  • Altered job duties;
  • Longer hours;
  • Impacts that reduce co-workers’ effectiveness or disrupt essential business functions.

As with many aspects of the ADA, there isn’t a set definition of when these factors would meet the definition of undue hardship. However, if the employee requests indefinite leave, it is generally considered unreasonable. Indefinite leave is a leave of absence with no anticipated date of return or defined period of time. This often leads to an undue hardship as it creates difficulties in planning operations and maintaining staffing. The EEOC has stated that employers are not required to grant indefinite leave as an accommodation, and this guidance has held in courts.

Employers should be aware that the burden is on the employer to provide proof that allowing the employee additional leave as an accommodation is not reasonable. If an accommodation is not reasonable, then the employer no longer needs to provide it and the employee’s additional absences would be subject to the company’s attendance policy.

Now, there are two major pitfalls that present a fair amount of risk.

Pitfall #1: Assuming Protected Leave Is the End of the Analysis

As mentioned above, while employees are not required to participate in the ADA interactive process, employers are obligated to participate. Let’s say an employee is on protected leave for their own serious health condition. They exhaust their leave and are unable to return to work and have requested additional leave. Because they exhausted their protected leave, they are terminated without the employer engaging in the interactive process. In this case, there is a high risk of a discrimination claim as the employee could claim that the employer was aware that the employee had a disability and needed an accommodation, yet the employer never engaged in the ADA interactive process.

Pitfall #2: Providing Additional Leave Without Documentation

Another pitfall is a situation where an employee is on protected leave for their own serious health condition. They exhaust their leave and are unable to return to work, and the employer informally allows the employee to take additional leave. After six months, the employer can no longer provide leave and would like to terminate. In this situation, did the employer engage in the ADA interactive process? Were there conversations with the employee? Is there documentation of the process?

If the answer to those questions is no, then the least risky thing to do would be for the employer to begin the interactive process immediately, talk to the employee, request medical certification, and evaluate if additional leave can be provided to reduce the same risk that may occur in the first pitfall.

Navigating leave laws is complex and becomes even more complicated when combined with the ADA. For more information on protected leave and disability accommodations, please visit our FAQs. You can also contact us at compliance@cascadeemployers.com.