“Eric, we have an employee who needed four weeks off for hip surgery. We provided it. After the surgery, they requested three more months off to have a second surgery. We provided it. Then, they experienced even more complications that required even more surgery, and their doctor told us they couldn’t work with or without accommodations for an additional three to six months. Do we have to accommodate this too?”
I get these types of questions often. And my answer is (sorry, clients), “It depends.”
Specifically, it depends on the related facts and circumstances.
For example, let’s say the client is a large box store that employs hundreds at the same location, many of whom can perform the same duties and responsibilities as the requesting employee. The employer has a generous paid time off policy and a separate policy that contemplates extended leave in situations involving personal health issues. Extending the leave of absence for a third time may be reasonable under those circumstances because the employee’s continued absence won’t leave the client shorthanded much, if at all.
But here is an example of where it wouldn’t be reasonable. This time, the employee is a full-time grade school teacher whose first surgery occurs at the start of the school year. The school has a PTO policy, just not one that contemplates the possibility of missing most of the school year. The school does have substitute teachers available. But they are paid per diem, and there is no guarantee that they will want to work day to day for the entire school year. So by the time we get to that third surgery (and corresponding leave extension), there are concerns that the per diem teacher will leave, not to mention no guarantee that the students will receive a high-quality education from a full-time permanent instructor.
In the school setting, you can terminate employment without much risk of running afoul of the Americans with Disabilities Act. Why? Because the employee is no longer qualified to perform the job’s essential functions with or without reasonable accommodation.
But don’t just take my word for it. Check out this recent opinion from the First Circuit Court of Appeals.
How much time does your business need to provide an employee on medical leave to return to work — if you don’t operate a big box store or work in school administration?
I’m sorry. The answer, well, it depends.