When Requested Leave Will Not Help Anyway

By Lehr Middlebrooks Vreeland & Thompson, P.C.

April 18, 2018

Is an employer required to extend multiple leaves of absence to an employee  when there is no anticipated return to work? No, according to a California court in the case of Ruiz v. ParadigmWorks Group, Inc. Ruiz injured herself on November 11, 2015, and as a result of that injury was totally disabled and unable to return to her job. Her doctor’s first note indicated that she would be unable to work through November 20, 2015, and PGI  (her  employer)  granted leave on that  basis. The doctor’s second note indicated that she  would be unable to work through February 22, 2016, and PGI granted her leave on that basis. The doctor’s third note stated she would be unable to  work until April 1, 2016. Shortly after receiving that note, PGI terminated her  on February 29, 2016, but invited her to apply for any positions that would be  open when she was able to work again. In fact, Ruiz would continue to be unable to work while receiving disability benefits through September 2016. That didn’t deter Ruiz from alleging that PGI didn’t properly accommodate her, however. According to the Court, “the question presented is not whether  [an accommodation] imposes an undue hardship, but whether the accommodation requested is reasonable and thus required in the first place.” That is, a requested accommodation must in some manner connect to  the  employee’s ability to do the work or return to the job at a foreseeable time in the future. The Court stated that in this case, the facts were that  “Ruiz was  totally disabled and that no accommodation would have allowed her to  perform her job. Therefore, the employer acted within its rights to terminate Ruiz.“

Often, an employee who requests extended leave is unable to perform the essential job functions – that’s why he or she needs to be on leave. But  remember that the employee must be able to provide the employer with an  anticipated date of return when the employee could perform the essential  functions of the job with or without accommodation. Leave without an anticipated date of return is not a reasonable accommodation, and it can take many forms: leave “until I get better,” leave “until the doctor releases me,”   leave “at least until my next appointment” (when the next appointment is many weeks or even months away, and cascading requests for leave like  Ruiz’s that lead a reasonable employer to conclude that return is not definite or imminent).

While indefinite requests for leave are not reasonable accommodations  under the ADA, they can be protected under the FMLA until the employee exhausts the 12 week entitlement. Let’s assume an employer is faced with  the situation where, at the end of FMLA, the employee asks for an indefinite  period of leave without an anticipated date to return to work. On that basis,  the employer may determine that the additional leave cannot be granted and the employer may move forward with termination. The approach we  recommend is referred to as “soft” termination. That is, if, at the end of FMLA, an employee is unable to return to work at a definite and fast-approaching date and the employer needs to fill the position, the employer notifies the employee that the position will be filled and if and when the employee is able  to return to work, the employee should notify the employer, who will then  consider whether there is a position for the employee at that time. Although FMLA requires reinstatement to the same or “virtually identical” position without a loss in pay, such is not required under the ADA. When FMLA leave  is exhausted and an employee is on an extended leave beyond that and then  returns to work, under the ADA, the employer is not required to reinstate the  individual to the same or comparable position at the same pay. As with any  complicated ADA situation, we recommend you consult with counsel about  past practices, alternative duty positions, and case law developments before definitively informing an employee in such a situation that their request cannot be accommodated.

Remember that all reasonable accommodation decisions under the ADA are supposed to be made based on an interactive process between the employer and employee. A fixed leave policy by which an employee will be terminated  if an employee does not return to work may violate the ADA, because it is not individualized. It may be that a leave for one job classification can be tolerated but not another. That’s fine, as long as it is an outcome of an individualized assessment.