EMPLOYMENT LAW: LEAVE OF ABSENCE – A REASONABLE ACCOMMODATION?
Submitted by Scholz, Loos, Palmer, Siebers and Duesterhaus Attorneys at Law
Think that you don’t have to worry about giving employees time off because your business is not covered by the Family and Medical Leave Act (FMLA)? You may want to think again. Even if your business is not a covered employer under FMLA, it may still be subject to the Americans with Disabilities Act (ADA).
At first glance ADA would not seem to be relevant to the issue of leave of absence in the workplace. The ADA is not a leave of absence statute (unlike FMLA). The ADA provides no direct guidance on how long an employee is entitled to take off. Instead, the ADA requires “reasonable accommodations” be given when necessary so that people with disabilities can perform the essential functions of their jobs, unless doing so would constitute an undue hardship to the employer.
With the recent enactment of the Regulations for the ADA Amendments Act, the EEOC is refocusing its energy to the meaning of “reasonable accommodation”. Recently, the EEOC held a meeting concerning the employee’s ability to take leaves of absences as a reasonable accommodation under the Americans with Disabilities Act (ADA). The EEOC takes the position that a leave of absence is a reasonable accommodation under the ADA in some circumstances and failure to provide such leave of absence may constitute a violation of the ADA. Employer representatives are weighing in on the discussion to seek more guidance and clarity in administering such position. It will be interesting to see how the courts decide these matters, particularly in light of previous 7th Circuit decisions holding that attendance is an essential function of the job.
At present there are many unanswered questions. One thing that is clear is that EEOC is pursuing actions where employees are being terminated under a no-fault leave policy. The EEOC takes the position that these no-fault policies are inflexible and restrict potential reasonable accommodations under the ADA and thus violate the ADA. Employers would be wise to review and update their policies.
If you would like to know more about this topic, feel free to consult any one of the members of the Scholz, Loos, Palmer, Siebers & Duesterhaus LLP (“SLPSD”) Employment/Labor Law Group, which specializes in employer representation. Our attorneys have over 50 years of combined experience in this area. The Group deals with general state and federal employment and labor laws, including FLSA, FMLA, ADA, Wage and Hour, and general personnel issues, including discharge, discipline, union negotiations and grievances. The Group also handles independent internal investigations, compliance with state and federal laws, and has experience in representing management in mediations and arbitrations. The Group consists of James L. Palmer, Joseph A. Duesterhaus and Jennifer A. Winking. Please refer to our website at www.slpsd.com for detailed biographies of each attorney. SLPSD Employment/Labor Law Group is ready, willing and able to handle your business needs.