The Essential Guide to Family & Medical Leave

256 | the essential guide to family and medical leave
accommodation, unless it creates an undue hardship. This means that the
company might have to provide additional leave, make changes to the
employee’s position to allow the employee to do the job, or even transfer the
employee to a different position. And, the ADA requires the company to
return the employee to the same job with a reasonable accommodation—not
an equivalent one—unless doing so would be an undue hardship. Therefore,
if an employee’s leave qualifies under both laws, you might not be able to
reinstate the employee to an equivalent position.
Leave as a Reasonable Accommodation
Here are some things courts have considered when deciding whether leave
constitutes a reasonable accommodation:
• The nature of the job. If regular attendance is an essential function of the
job (as it often is), some courts have found that an employee who needs a
significant amount of time off is not a qualified employee with a disability
and isn’t protected by the ADA nor entitled to a reasonable accommodation.
• How much leave the employee needs. While many courts have found that
an employer is not required to provide open-ended leave, courts are more
likely to see a finite period of leave as a reasonable accommodation. If an
employee will be able to return to work after two additional weeks of leave
(beyond the 12 weeks allowed by the FMLA) for physical therapy following
surgery, for example, a court is more likely to find that the employee is entitled
to this time off.
• How much time off the employer provides in other circumstances. If an
employer grants extended leaves for other purposes, it will be hard pressed to
claim that allowing leave to an employee with a disability is an undue hardship.
Ultimately, the undue hardship test will determine whether you must grant
an employee’s request for time off under the ADA. Before you decide to deny
this type of request, talk to an employment lawyer to find out how courts in
your area look at these cases—and to make sure you’ve considered all of the
angles before making your decision.