Most employers know that if an employee is covered by the Family and Medical Leave Act, the employee is entitled to up to 12 weeks of unpaid leave.  But what if the employee is not eligible for FMLA, or the FMLA benefit has been exhausted and the employee still needs time away from work?  In most every case where a medical condition is involved, the employer and employee are required to engage in an interactive process to determine if the employee is entitled to a reasonable accommodation - which could be more time off from work.  The obligation arises under the federal Americans With Disabilities Act as well as parallel New York State and New York City laws.  A recent court decision in New York highlights that an employer's lack of participation in this process could result in liability to the employer.

In the court case, an employee was injured in a bus accident. His mother contacted the company on his behalf and notified the company that the employee would be out from 3 to 6 months. Shortly after this notice, the company terminated the employee, concluding that 3 to 6 months would be too long to hold the position. The court noted that "the first step in providing a reasonable accommodation is to engage in a good faith interactive process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested." The court noted that not all requests for leave are necessarily reasonable. For example, one year or an indefinite time period likely would not be reasonable. However, regardless of the length of the request, the employer must interact with the employee and determine (such as through the request for medical documentation) whether any accommodation is possible. As a final note, the court pointed out that employers have an independent duty to reasonably accommodate an employee if the employer knew or should have known that the employee was disabled, even if the employee did not make a specific request.

The lesson for employers is clear: a request for an extended leave of absence mandates some form of interaction with the employee to determine whether a reasonable accommodation is an available option. Employers should analyze their business needs to determine how long the employee can be out without causing undue hardship. Employers also should request medical documentation demonstrating how long the employee is expected to be out of work. A decision that an accommodation is not possible without engaging in the interactive process will be a costly one.

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