Employers with 50 or more employees are often aware that they are required to provide twelve weeks of unpaid leave to eligible employees (i.e. employees that have worked the required number of hours):

• for the birth of a child and to care for the newborn child, because of the placement of a child with the employee for adoption or foster care;
• because the employee is needed to care for a family member (child, spouse, or parent) with a serious health condition;
• because the employee's own serious health condition makes the employee unable to perform the functions of his or her job;
• or because of any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a military member on active duty or call to covered active duty status (or has been notified of an impending call or order to covered active duty)

pursuant to the Family Medical Leave Act ("the FMLA"). 29 CFR § 825.100 and 825.110.

Employers are less often aware that they may be required to provide medical leave pursuant to the Americans with Disabilities Act ("the ADA"). First, it should be noted that the ADA covers employers with as few as 15 employees. 29 CFR § 1630.2(e). Second, any employee is covered by the ADA, not just those that have worked a certain number of hours. 29 CFR § 1630.2(f). Therefore, many employees that are not covered under the FMLA may still be entitled to leave under the ADA.

General Rule under the ADA

While the general rule is that an employee must show up to work, regardless of disability, failing to accommodate a reasonable request for medical leave may indeed violate the Americans with Disabilities Act. See Haschmann v. Time Warner Entertainment Co., 151 F.3d 591 (7th Cir.1998). “[I]t is not the absence itself but rather the excessive frequency of an employee's absences in relation to that employee's job responsibilities that may lead to a finding that an employee is unable to perform the duties of his job.” Haschmann, 151 F.3d at 602.

“The ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability. The fact is that in most cases, attendance ... is a basic requirement of most jobs.” Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999).

When dealing with the situation where an employee is asking for a leave of absence from work for medical reasons the employer must ask several questions under the ADA:

1. Does the medical reason given qualify as a disability?
2. If so, has the employee made a request for reasonable accommodation?
3. If the employee has made such a request, what are the employer’s responsibilities regarding this request for reasonable accommodation?

1. Does the medical reason qualify as a disability?

“Disability” is defined as:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U. S. C. § 12102(2).

“Major life activities” means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 CFR § 1630.2(i).

Because the employee is stating they cannot work, which is a major life activity, there is an argument that any employee stating they cannot work for medical reasons is suffering from a disability. However, one needs to look at the severity, duration, and actual or potential long-term impact of the impairment in deciding whether the person is claiming a disability. 29 CFR § 1630.2(j). Courts have held that a temporary injury with minimal residual effects cannot be the basis for a sustainable claim under the ADA. See Sanders v. Arneson Products, Inc., 91 F.3d 1351, 1354 (9th Cir. 1997) (a psychological impairment that lasted three and one-half months was found to be “temporary” and “not of sufficient duration” to fall within the protections of the ADA as a disability).

2. Has the employee made a request for reasonable accommodation by requesting leave?

EEOC Guidance states:

“To request accommodation, an individual may use ‘plain English’ and need not mention the ADA or use the phrase ‘reasonable accommodation.’” An employee need not use any “magic words” so long as they express their desire to take leave and return to the company. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir.1999). Therefore, any request for leave for medical reasons by a person with a disability should be considered a request for a reasonable accommodation.

3. What are the employer’s responsibilities regarding this request for reasonable accommodation (i.e. medical leave)?

Once a medical leave has been requested by a person with a disability, the employer must work with the employee to determine whether the requested leave can be granted as a “reasonable accommodation” to the employee without imposing “undue hardship” on the employer. See 42 U.S.C. § 12112(b)(5)(A).

However, even if the employee’s request for leave may not be reasonably accommodated without undue hardship, the employer may still be under a duty to offer alternative reasonable accommodations that may allow the disabled employee to continue working.

The federal regulations under the ADA ‘envision an interactive process that requires participation by both parties.’ Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.1996)).

29 C.F.R. § 1630.2(o)(3) states:

To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.

The exact shape of this interactive dialogue will necessarily vary from situation to situation and no rules of universal application can be articulated. See Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 515 (1st Cir.1996).

Advice for Employers

In accordance with the ADA, employers should develop policies to allow for medical leave even for those employees not covered by the FMLA. Certainly, an employee who continues to be absent from work and provides no reason may be terminated in full compliance with the ADA. However, where an employee is requesting leave based on a disability, compliance with the ADA is more complicated. In general, the process should be less focused on strict deadlines and length of the employee’s service and more focused on considering and documenting all factors that went into the decision to allow or disallow medical leave. Any policy allowing for medical leave under the ADA should include:

• References to relevant ADA standards;
• Procedures for terminating employees who provide no basis for determining whether they have a disability under the ADA;
• Procedures for documenting what information the employee has provided regarding their potential disability and how employee would be limited in their work capacity;
• Procedures for documenting the employee’s duties at the time medical leave is requested;
• Procedures for documenting quantitative and qualitative burden for the employer based on employee’s absence;
• Procedures for documenting alternative reasonable accommodations considered and offered in lieu of medical leave.

If you have any questions about this article, or about medical leave in general, please contact Andrew Hanlin (ahanlin@setlifflaw.com) at (804) 377-1277 or Steve Setliff (ssetliff@setlifflaw.com) at (804) 377-1261.