One of the most frequent questions we receive concerns employees who are on an extended leave of absence. The employee may have been injured at work and seeking or receiving workers’ compensation benefits. Or, the employee may have taken months of leave while, at the same time, the employer bears the cost of the employees’ continuing receipt of insurance benefits. An employer may want to end the insurance coverage to save costs but is afraid of violating the Americans With Disabilities Act when the employer terminates the employee’s employment status.

The Equal Employment Opportunity Commission (“EEOC”) has now issued a Guidance helpful to employers to determine when continuing employment is a reasonable accommodation or when an employer may terminate the employee’s employment status. On October 24, 2008, the EEOC issued “The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities.” In general, the Guidance answers questions concerning the actions an employer may take when a disability is causing performance issues and misconduct. In addition, the EEOC gives guidance regarding reasonable accommodations and when employers may discuss a disability with an employee having problems with performance and misconduct. Specific examples include employees with alcohol and drug problems and, importantly, attendance problems. Significantly, the Guidance states that, under the correct circumstances, an employer may terminate an employee on an indefinite leave of absence.  

The EEOC writes that “[a]lthough employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration. Granting indefinite leave, like frequent and unpredictable requests for leave, can impose an undue hardship on an employer’s operations. Indefinite leave is different from leave requests that give an approximate date of return (e.g., a doctor’s note says that the employee is expected to return around the beginning of March) or give a time period for return (e.g., a doctor’s note says that the employee will return some time between March 1 and April 1). If the approximate date of return or the estimated time period turns out to be incorrect, the employer may seek medical documentation to determine whether it can continue providing leave without undue hardship or whether the request for leave has become one for leave of indefinite duration.” Therefore, employers should not wait for an employee and his doctor to release the employee for work. Instead, employers should seek information from the employees and his doctor and then determine whether there is an indefinite leave of absence or whether the employer should continue the employee’s employment status.  

Alan M. Kaplan recommends that employers take the following steps to protect their interests. First, examine the employer’s policies to determine if the employer has set a limit on extended leaves of absence. Second, determine a procedure for discovering information from employees and their doctors. Employers have the right to ask employees about their disabilities and the reasonable accommodations they are seeking. Employers may ask about the amount of leave necessary and whether the leave of absence is indefinite or for a set period of time. To help employers, the Firm has developed sample letters and forms. The final portion of the procedure is a decision-making process documented by management. With such a process and documentation, employers will have a better chance of defending themselves when employees file suit alleging that the employer discriminated on the basis of a disability and/or failed to reasonably accommodate a disability.