Tough HR issues: ADA and extending a leave of absence

Depression-loss of loved oneAlright smarties. One of ABC Company’s employees suffers from post-partum depression. She’s been out of work for over a month, and the company wants to replace her. But, first, it wants your advice. 

Read all the facts below:

Emily Employee is an HR Coordinator at ABC Company. ABC provides short-term disability benefits for regular full-time employee like Emily. Last year, Emily began a 12-week maternity leave under the FMLA, during which time she received STD benefits. She returned to work with no restrictions.

Earlier this year, in late January, Emily met with her supervisor and requested a 30-day leave for post-partum depression. Emily’s doctor faxed a letter to ABC requesting that Emily remain off work until late February. ABC approved her leave. In late February, Emily provided a second doctor’s note stating that the post-partum had not resolved and Emily would need to remain out of work until early April. Emily submitted a medical certification form in mid-March.

Emily’s supervisor comes to you with concerns that Emily’s continued absences are problematic and creating workflow issues within HR. During her leave of absence, other employees in HR have also picked up some of Emily’s duties. However, the majority of Emily’s work has been performed by a temporary employee, Temporary Tammy.

ABC is considering terminating Emily before she returns in April and replacing her full-time with Tammy in May. However, Tammy will not be able to start until August (she too is pregnant).

So, what do you tell ABC? Let me know in the comments below.

(Later today, I’ll post a link to a recent federal court decision discussing this very issue)

UPDATE: Here is the case. An Indiana federal court denied the employer’s motion for summary judgment on this issue, suggesting (but not concluding) that an extended leave would have been reasonable. Further, the facts here appear to undercut any argument that attendance was an essential job function. But, the court wouldn’t go so far as to say the employer was wrong for terminating “Emily.” That will be up to a jury to decide.

  • Ben Cook

    Right off the back, does the Emily work in a state that provides additional forms of job protection beyond FMLA (i.e. California offers PDL job protection totalling 704 hours). The state job protection can run concurrent with FMLA but is above and beyond in comparison. This could provide additional job protection during the post partum period until exhausted. If no additional job protection exist; the employee should be referred to an accommodations specialist/consultant to work with the employee, the manager, and the employee’s doctor to see if she can return back to work on an reduced work schedule or intermittent absences. As a last resort, if no job protection exist or the accommodation is a “hardship” on the business; the employee could be placed on leave but the role can be filled. If the role is filled under these circumstances, it might be appropriate to fully review all policies related to leave of absence and replacing employees. It could be appropriate to allow the employee to consider long term disability, if that is an option so she could be paid. Ultimately, if she is not able to return to work under any circumstances; termination might have to be the last option. Some employers have an extend absence policy that will allow employees to terminate due to being on leave of absence for a specified period of time, like 24 months consecutively.

  • Linda Lauritzen

    The company needs to prove that this was an undue hardship and at this point in time it doesn’t appear to be the issue unless the cost of the temporary employee is outrageous. They should have waited to see if she could return in early April. At that point it may have been determined that an indefinite leave not covered under FMLA would be an undue hardship.

  • Ben

    I believe that post-partum depression is covered under ADA, so the employer would likely have to work toward a “reasonable accomodation” before other action could occur. The cool thing is Tammy is pregnant, so they could potentially learn something from Emily’s case before they have a do-over with Tammy.