Ellen McLaughlin Quoted in Human Resource Executive
"Are There Limits to ADA Leave Requests?"

Seyfarth Shaw Labor and Employment partner Ellen McLaughlin was quoted in Human Resource Executive on June 16 in an article regarding a recent hearing by the Equal Employment Opportunity Commission (EEOC) on employers providing leave to disabled workers under the Americans With Disabilities Act (ADA).

According to the EEOC, employers need to demonstrate flexibility whenever medical leave is requested by a disabled worker, but businesses contend that the ADA neither limits the number of leave extensions companies are required to provide nor denotes how long employers are supposed to keep a job open.

Ellen commented that these issues tend to affect larger companies more often, and she said that "the EEOC assumes larger companies can afford to hire temps and have the staff to pick up the work." However, "To fill the position, you have to prove it's an undue hardship to leave it open…and it's unlikely you could assert the cost is an undue hardship, so you have to show it affects your business operations."

Regarding the lack of a defined limit to which a company must agree to an employee's request for leave, Ellen asked, "How many extensions do you have to grant [before] there's no expectation they'll ever come back? What does indefinite mean?" She agrees with the argument that attendance is an essential function of a job, and if an employee that is disabled is not going to work, that should qualify as being an undue hardship.

To employers, Ellen suggests considering extending extra leave time to employees instead of terminating them once they have reached the maximum amount of leave. She also recommends if a company uses third-party administrators dealing with benefits or leave administration, they should make sure any information regarding an employee's ability to work is communicated.