“$4.5 million awarded for failure to grant additional leave.” This judgment came down in January 2018 in favor of an employee who requested additional leave beyond her entitled FMLA. She had requested 18 additional days to accommodate her disability under the ADA. Her employer, instead of engaging in an interactive process, terminated her employment.
This case serves as an important reminder that employers need to be prepared to properly address a leave request under the ADA, which requires that they engage in an interactive process with employees to determine if the request can be accommodated and is reasonable. Employers often overlook additional time off as an accommodation under the ADA. This judgment was rendered against the employer because they failed to engage in the interactive process.
Unfortunately, the ADA was not intended to be a leave law and it offers no set time limit on leave that must be granted as an accommodation. There are a number of court cases where contradictory decisions have been rendered regarding the request for additional leave as an accommodation under the ADA. That leaves employers with a tremendous amount of gray area to navigate when addressing these requests.
The most important lesson here is the need for a formal process. If this has you running scared, you will be glad to hear there is help available in the marketplace. Most third party leave administrators offer ADA services that employers can purchase at additional cost or add-on to traditional leave administration. These services typically include three elements:
Identification – identifying potential ADA leaves as well as gathering the medical data and pushing that data to the employer client
Coaching/Guidance – telephone based guidance with an ADA expert, this typically includes an undue hardship analysis
Communication/Data – communication to the employee as well as tracking of approved leaves
As you can see, these services do not include actually engaging the employee in an interactive process. Nor do they include a final decision about whether or not to make the accommodation. They do, however, offer some peace of mind by allowing you to rely on an expert for situations that you may run into very infrequently.
On a final note, leave administration services are available to process leaves for groups as small as 50 employees. Minimum fees typically come into play at this size, but the service is available for smaller employers that want to outsource.
Hill v. Asian American Drug Abuse Program, Inc., Calif. Super. Ct., No BC 582 516
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