REASONABLE ACCOMMODATION
Chefsint
23 Posts
Our EE has exhausted FMLA. EE illness covered under ADA (cancer). How much time do we allow off to reasonably accommodate? EE has been out for one month and does not know when returning. EE's doctor stated return date is "unknown at this time". We are a small office; basically one ee per department. Do we need to keep job open indefinitely?
Comments
[quote user="SFbay"]Could you get temporary help while the employee is on leave? The EEOC says that reasonable accommodation includes providing unpaid leave, unless the employer can demonstrate it would cause "undue hardship." You can find information on the ADA and undue hardship on this website or at http://www.eeoc.gov/policy/docs/accommodation.html#undue.
[/quote]
Undue hardship is a pretty high threshhold.
After allowing that absence is not a reasonable accomodation, they back-doored it by saying that leave was a reasonable accomodation but failed to give any guidance on how much leave or under what circumstances.
My recommendation is to check with a local employment law attorney. I would expect that the standard differs from circuit to circuit unless that has been a big case in Texas and a big case in California AND they both agree on the salient points in your situation.
I agree that the undue burden threshold is pretty high. In the situation you describe though, one person per department would mean that the person would have to be at least temporarily replaced. The replacement may have to be trained. Depending on the industry and the difficulty of the job, this may be very difficult (e.g., undue burden).
As an alternative, you can ask for a second opinion on the medical cert if the first doctor refuses to give even an estimated date of return (note that the new FMLA forms don't allow doctors to say "unknown" or indeterminate", but some doctors will continue to do so anyway). For an ADA-covered disability, the doctor should be able to give a better estimate than "uknown." Under ADA, the employer is not required to keep the job open indefinitely, but it really has to try hard to make the situation work for as long as possible.
Thank you for your guidance.
Yes, it is a pretty high threshhold.
No, they do not give any guidance on how much leave is reasonable.
Thank you for your guidance. I appreciate your help.