How Long Must Employer Allow Employee to “Heal”?

An employee is injured in an accident outside of work.  She requests and is granted an unpaid leave of absence under the Family and Medical Leave Act [FMLA].  However, after her twelve (12) weeks of FMLA leave are exhausted, her doctor still has not released her to return to work.  The doctor’s note to the employer indicates the employee needs another month to heal from her injuries sufficiently to be able to perform the essential functions of her job.

What are the employer’s options?  Does the employer have to allow the employee additional time off even though she has used up her FMLA leave?  Does the Americans with Disabilities Act [ADA] afford the employee more time to “heal” from her injuries as a “reasonable accommodation” under the Act?  And, if so, is there a clearly defined limit of time under the ADA after which the employer no longer has to wait for the employee to heal?

Unfortunately for employers and employees alike, there are no bright line “healing” parameters.  However, some reasonable guidelines have emerged from the Equal Employment Opportunity Commission [EEOC] and court decisions.  For example:

  • One (1) additional week of leave after expiration of FMLA leave almost certainly is a reasonable accommodation – “unless [the employer] can show undue hardship. The employer may consider the impact on its operations caused by the initial 12-week absence, along with other undue hardship factors”

EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (2002)][1]

  • Six (6) months of additional leave is likely unreasonable and not required by the ADA.
  • Hwang v Kansas State University, 753 F3d 1159, 1161 (10th Cir 2014) – “It perhaps goes without saying that an employee who isn’t capable of working for [six months] isn’t an employee capable of performing a job’s essential functions—and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation” under the Rehabilitation Act;
  • EEOC Enforcement Guidance, supra – “An employer is seeking a reassignment for an employee with a disability. There are no vacant positions today, but the employer has just learned that an employee in an equivalent position plans to retire in six months. Although the employer knows that the employee with a disability is qualified for this position, the employer does not have to offer this position to her because six months is beyond a ‘reasonable amount of time’”.

What about time frames between these diverse periods?  And how does a well-intentioned employer  deal with an employee who presents “serial” doctor notes at the conclusion of each leave period further extending leave for an additional week or two each time?

Please contact attorney Robert M. Sosin in our office to discuss these and other employment issues you may have.  He can be reached at 248-642-3200, or at robert@asnlaw.com.

[1] The EEOC has not revisited this publication since the 2008 enactment of the ADA Amendments Act even though the EEOC indicated it “will be evaluating the impact of [the Amendments Act] on this document.”