What Happens When Disability Laws Conflict with Company Policy?

• Author: Morris, Daniel

Winter brings us to peak flu season. Employee absenteeism, whether for the employees own illness or that of a family member, becomes a regular issue for many employers. Fortunately, for most employers the absences caused by the flu and other common ailments are of short duration and covered by the employers sick leave policy. Operations quickly return to normal.

But what is an employer to do when an absence runs longer? Perhaps even beyond the employer's sick leave policy. For employers with more than 50 employees, they may be required to provide up to 12 weeks of leave under the Family Medical Leave Act. But many employers are not aware that the Americans' with Disabilities Act (also referred to as the ADA) and many state and city anti-discrimination laws in many circumstances require an employer to provide an unpaid leave of absence as a form of reasonable accommodation for an illness or medical condition.

While the Americans' with Disabilities Act requires that an illness or medical condition be more sever than a cold of flu for it to apply, some of the State and local laws have a much lower threshold for what constitutes a covered condition. Even more troubling for employers is the fact that the potential duration of an unpaid leave of absence is not defined in the ADA or the state and local laws.

Under the ADA, and most of the state and local laws as well, a leave of absence of some duration is a reasonable accommodation that an employer must provide unless it is, or becomes, an "undue burden." But there is no clear standard for when a unpaid leave of absence constitutes or becomes an "undue burden." Typically, increased workloads for the remaining staff, overtime expense, or even having to hire a temporary employee to cover for the absent employee are not enough to constitute an undue burden. This is true even if the absence goes on for months and months.

There is certainly no requirement that the employer provide a leave of absence that is indefinite or unlimited. But determining when the leave stops being a "reasonable accommodation" and starts being an "undue burden" must be...