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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

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