As many know, the Family Medical Leave Act (FMLA) requires employers with 50 or more employees to provide up to 12 weeks of unpaid leave to employees with serious health conditions. That leave is only available to eligible employees, generally those who have been employed for at least a year and worked at least 1,250 hours over the prior year. Many employers believe they do not need to grant any leave if the FMLA does not apply to them. Other employers believe that their obligation to grant a leave ends once the 12 weeks afforded under the FMLA is exhausted. Unfortunately, both of these common beliefs are often incorrect, and can lead to big legal problems.
Reasonable Accommodation May Include an Extended Leave
Under the federal Americans with Disabilities Act (ADA) and the state Minnesota Human Rights Act (MHRA), an additional leave of absence beyond that required under the FMLA for larger employers may be required as a reasonable accommodation of an employee with a disability. All employers with 15 or more employees must look at leaves of absence as possible reasonable accommodations under the ADA and MHRA. The courts have generally held that in cases where an employee has exhausted their FMLA leave, or where the FMLA does not apply, an employer need not grant an additional leave when it is entirely indefinite as to when and if the employee will be able to return to work and perform their essential functions. The courts have also held that an additional year of leave is generally unreasonable and not required. But in cases where the employee and his/her doctor have indicated it is likely the employee will be able to return to work after an additional leave of reasonable duration, then the ADA and MHRA can require that the additional leave be granted. What is a “reasonable” duration for the additional leave depends on the circumstances.
Engage in an Interactive Process
The ADA requires covered employers to engage in an “interactive process,” meaning a dialogue with the employee and, in some cases, with the employee’s doctor, to determine the nature of the need for the extended leave and the prognosis for when the employee will be able to return to work. Recently, Larkin Hoffman attorney Chris Harristhal successfully argued at the Minnesota Court of Appeals that the MHRA does not require employers to engage in this interactive process. That decision, however, is currently under review by the Minnesota Supreme Court. Regardless, all employers covered under the ADA and MHRA should engage in the interactive process with employees to determine the type of leave they are requesting, how it is related to their medical condition, and their expectation for when and how they will be able to return to work. This process should be documented, and undertaken for all employees regardless if they have exhausted their FMLA leave or are otherwise not entitled to it. The decisions regarding medical leaves are very fact specific, and all employers should proceed cautiously with guidance from legal counsel in handling them.