Big Firm Quality. Small Firm Feel.
View Our Practice Areas

How much leave do you have to give an employee?

How much leave do you have to give an employee under the Americans with Disabilities Act (ADA)?

The answer, according to the Equal Employment Opportunity Commission (EEOC) is whatever is "reasonable."

If you're like most employers, you find that answer frustrating and unclear. It gets even worse if a disabled employee combines leave guaranteed under the Family Medical Leave Act (FMLA) with an additional request for more leave under the ADA.

However, the courts have recently started to show signs that they're going to start answering the question of "what reasonable looks like" when it comes to ongoing leave -- in a way that's actually favorable to employers.

Rather than siding with the EEOC, the courts are shifting directions and recognizing the need that employers have to place an end date on an employee's ongoing leave so that the business isn't held hostage to an employee's "some day-maybe" return.

Essentially, the federal Court of Appeals for the 7th Circuit pointed out that the ADA is designed to make things possible for a person to do his or her job despite a disability. Someone out on leave for months on end can't do their job.

However, keep the following guidelines in mind when imposing policies about leave:

  • A request for leave lasting less than a month following the use of FMLA leave may be required by the ADA.
  • Any leave that is episodic in nature -- even if that has to reoccur several times -- may have to be allowed.
  • Every case has to be examined individually, so blanket policies are unwise.

With the changing nature of the legal landscape for employers, it's always best to make sure that you have experienced legal counsel examine your ADA policies regarding leave if you have any doubt about whether or not the EEOC and courts would find them acceptable. That way you can avoid unnecessary employment litigation.

Source: Lexology, "Court Hands Victory to Employer In "Leave After Leave" Battle," Fisher Phillips, Nov. 01, 2017

No Comments

Leave a comment
Comment Information
Email Us For A Response

Contact The Firm

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

Office Location

Torrance Office 21515 Hawthorne Boulevard, Suite 450 Torrance, CA 90503 Phone: 310-540-2000 Fax: 310-540-6609 Torrance Law Office Map

Palo Alto Office 335 Bryant Street Suite 100 Palo Alto, CA 94301 Map & Directions