Wednesday, November 26, 2014

An employee must ask for ADA accommodation to receive it

HBy now, hopefully everyone reading this blog knows that the expiration of an employee’s 12 weeks of annual FMLA leave is not necessarily the end of that employee’s unpaid leave of absence for his or her own medical issues. Under the ADA, an employer must consider granting unpaid leave the exceeds the FMLA as a reasonable accommodation, provided that the employee actually requests the accommodation. As Judge v. Landscape Forms (6th Cir. 11/24/14) [pdf] makes clear, an employer is not required to offer a reasonable accommodation that an employee does not first request.

The facts of the case are relatively simply. Mark Judge took an FMLA leave to heal his shoulder after surgery from a non-work injury. At the time of his FMLA leave, he advised the company that his recovery time was 4-6 months. When his 12 weeks of FMLA leave expired, however, he did not advise of an expected return to work date, or otherwise ask for any additional unpaid time off as an accommodation.

Under those circumstances, the court concluded that the company had no obligation to provide any unpaid leave in excess of Judge’s 12 weeks of FMLA:

The EEOC regulations interpreting the ADA place the initial burden of requesting an accommodation on the employee. Once that request is made, the employer has a duty to engage in an interactive process to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. But if the employee never requests an accommodation, the employer’s duty to engage in the interactive process is never triggered….

Judge argues that Landscape Forms should have granted him a leave of absence until mid-November 2011, when he ultimately was released to work without restrictions. However, Judge fails to identify any statement he made before he was fired that could be construed as a request for leave until then….

Leaves of absence and reasonable accommodations are two of the trickier workplace issues facing employers. When those two issues converge with one employee, the complexities increase exponentially. As Judge v. Landscape Forms illustrates, unpaid leaves of absence are not a guaranteed entitlement, and employees must ask for for accommodation before being able to sue over its denial.

Happy Thanksgiving. I am extraordinarily thankful that you take the time to read my thoughts every day. I’ll see everyone back on Monday after a much needed long weekend.

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