Wednesday, February 27, 2013

How long is too long for an unpaid medical leave of absence? Not two weeks and a day.

Unpaid medical leaves of absence are the bane of many employers. There should be little doubt that employers must consider an unpaid leave as a possible reasonable accommodation for an employee’s disability. Thus, when considering unpaid leaves, the key question typically isn’t if the leave should be granted, but, instead, for how long.

I don’t have an answer to the question, “For how long,” other than long enough to provide the employee a reasonable opportunity to return to work, and not forever. The answer depends on the facts and circumstances of each employee, each leave request, and each company. One answer I can provide with certainty, however, is that when an employee asks for “one more day” of unpaid leave, most often an employer will act unreasonably (and in violation of the ADA) by denying the request.

Such was the case with a recent settlement between the EEOC and a Maryland medical practice. Per the EEOC,

Doneen King, a medical practice representative whose duties included answering phone calls and scheduling appointments, was unable to work for two weeks while undergoing medical treatment for her disability, Crohn’s disease, including two emergency room visits and a hospitalization…. [W]hen King requested an additional day of unpaid leave as a reasonable accommodation, the medical practice instead terminated her.

University of Maryland Faculty Physicians, Inc.’ lateness and attendance policy violated the [ADA] because it did not provide for exceptions or modifications to the attendance policy as a reasonable accommodation for individuals with disabilities.

The medical practice paid $92,500 to the terminated employee. It also agreed to a three-year consent decree that prohibits it from violating the ADA, requires it to revise its attendance policy to permit disability-related accommodations, mandates management training on the ADA and reasonable accommodations, and obligates the employer to report to the EEOC on its compliance with the consent decree.

Spencer H. Lewis, Jr., district director of the EEOC’s Philadelphia District Office, provides the takeaway for employers: “It is not only a good business practice to provide reasonable and inexpensive accommodations that allow employees with disabilities to remain employed, it is required by federal law.” In other words, think long and hard before you deny a request for unpaid time off for an employee’s medical issue, and, when in doubt, call your employment counsel for a sanity check.

photo credit: Derek Bridges via photopin cc