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:
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.