Here is another issue for those providing HR Consulting. Giving employees unpaid leave can be a form of accommodation. But the leave must be directly related to the disability. Take for example an employee who is complaining of bouts of anxiety. This would have to be necessary to alleviate or help manage the anxiety (Bailey v Amsted Industries, Inc., 172 F3d 1041 (8th Cir 1999) (where employee’s absenteeism not related to disability).
On the other hand, the employee cannot insist on indefinite leave. As certain point, if the employee takes too much time, it would be tantamount to job abandonment.
For example, in Gantt v Wilson Sporting Goods Co., 143 F3d 1042 (6th Cir 1998), the employee was terminated for failure to return to employment after a 1-year leave of absence. The court ruled the employee was not discriminated against because reasonable accommodation does not require to employer to wait indefinitely for an employee’s medical condition to be corrected.
Also, the employer is not required to grant long periods of leave it if it would cause undue hardship to the company. This is especially the case if the individual’s position is needed for normal operations. For example, see Walton v Mental Health Assn. of Southeastern Pennsylvania, 168 F3d 661 (3rd Cir 1999), the court found that a 2½-month leave was excessive and caused undue hardship where employee’s presence was essential at the time due to fear the program she headed would fail for lack of funding and leadership. Thus, where the employer can show the leave would create undue hardship, it will not be liable for failing to accommodate.
Then there is the issue of offering a similar job to the employee when they come off disability. The ADA does require this. The only exception is if it would cause an undue hardship to the business. In this case it would, because one can hardly expect to keep the management job open indefinitely when that is need for the operation of the business.
So if the individual comes off leave and still wants the job, as an HR consultant you would not necessarily have to give them the same job that has been replaced, but at least attempt something that is equivalent.
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