Most employers are familiar with the Family and Medical Leave Act (“FMLA”) requirement to provide up to 12 weeks of unpaid leave to eligible employees. But what many do not recognize is that the Americans with Disabilities Act (ADA) can require employers to grant leave in addition to, and separate and apart from, that required by the FMLA. Because granting leave can be considered a “reasonable accommodation” for disabled employees under the ADA, a qualified employee with a disability may be entitled to leave as a reasonable accommodation under the ADA regardless of whether the employee has exhausted, or is entitled to, FMLA leave. In cases where ADA leave is appropriate, it can be denied only in situations where making such an accommodation would be an undue hardship to the employer.

So what does this mean for employers? Avoid a hard and fast cap on the number of days of unpaid leave available to employees with a qualifying disability. Instead, analyze whether allowing additional leave creates an undue hardship for the employer with the following factors in mind:

• The nature and net cost of the accommodation to the employer;
• The overall financial resources of the facility or facilities involved, the number of persons employed at such facility, and the effect on expenses and resources;
• The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities;
• The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and
• The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

Generally speaking, the bigger the employer, the greater the likelihood it will be deemed able to accommodate the extended leave. The most important thing is to engage in the analysis rather than steadfastly refusing any extension of leave.