By: Dan Cohen – 9/2/14
One of the most difficult things we do as labor and employment attorneys is determine at what point a business can discharge an employee who has been on an extended leave of absence due to a disability. Although the courts have grappled with this question for years, the answer seems simple enough: “until continued leave becomes an undue hardship.” EEOC Policy Guidance on Reasonable Accommodation under the ADA (March 4, 1999). If you are a small employer with fewer than 15 employees, lucky you: you are not covered by the ADA. You smaller employers must look to state law for guidance. In Michigan, small employers will reach the point of no return immediately because employees are not entitled to a leave of absence under the Michigan Persons with Disabilities Act (See e.g. Lamoria v. Health Care & Retirement Corp., 233 Mich. App. 560 (1999).For you larger employers, however, the path to the point of no return requires an “individualized inquiry,” which all but assures you of an uncertain outcome.
Now that I have narrowed it down for you, how do we know when it is appropriate to discharge an employee because his/her continued leave is an undue hardship? I will answer this question with a series of questions:
- What is the job and how important is the job to the organization?
- Has the employee exhausted all other paid/unpaid leaves of absence, including FMLA?
- Have other employees been provided longer leaves?
- Has the employee provided an imminent return to work date?
- Has the employee extended the leave and how many times?
I think you are probably starting to get the picture: there is no definitive answer. There is simply no magical number of weeks of months where an employer automatically reaches the point of no return. All we know for sure is that a disabled employee is not entitled to an “indefinite” leave of absence. So, what is an employer to do?
I would start with a leave of absence policy similar to the one endorsed by the Sixth Circuit in Cash v. Siegel-Report, 2013 U.S. App. LEXIS 24246 (6th Cir 2013). In that case, the employer’s policy stated:
“If an employee is unable to perform, with or without reasonable accommodations, the essential functions of his or her position, or another position that the Company may offer, for a period of 6 months within any 12 month period his/her employment will be automatically terminated, unless prohibited by law.
Any employee subject to termination under this policy may apply for an extension of his/her leave. Requests for extensions will not be considered unless they (a) are received by the Company before termination would otherwise take effect and (b) include medical documentation demonstrating that the employee will be able to return to work, with or without accommodations, on a date certain within a reasonable time after termination would otherwise take effect.”
Mr. Cash was granted a six month leave under the above policy when he injured his back. Just prior to the expiration of the six month period, Cash sought assistance from the HR department on how to apply for LTD benefits. This caused HR to believe Cash would not be returning within six months. Three days before the six month period expired, Cash made application for LTD benefits. He then re-scheduled his follow-up doctor’s appointment so that his examination occurred after the expiration of the six month period. He was released to return to work with lifting restrictions. Cash immediately took his doctor’s restrictions to HR. The HR manager looked at the note, gave it back to Cash and told him he had been discharged three days earlier in accordance with the policy.
The Sixth Circuit affirmed the dismissal of Cash’s ADA case. The Court clarified that the policy was not an “inflexible blanket policy” which provided for automatic discharge after a certain date. Thus, the policy itself was not contrary to the ADA’s “individualized” inquiry requirement. The Sixth Circuit then distinguished the facts from those in Cehrs v. Northeast Ohio Alzheimer’s Research Ctr., 155 F3d 775 (6th Cir 1998) where the employee had requested an extension of leave before the leave expired. Cehrs is the case which said in dicta that there is no per se rule that a very lengthy leave such as one year could never constitute a reasonable accommodation under the ADA. With a policy similar to the one endorsed by the Sixth Circuit in Cash v. Siegel-Report, you can establish a general “point of no return” as long as you are prepared to make limited exceptions depending on the individualized circumstances. Remember, your approach must be flexible. Otherwise, you risk a ruling that you have failed to provide a reasonable accommodation as a matter of law.