Assessing extended leave requests can be one of the most difficult and challenging issues employers face. While many employers are sympathetic to an employee's challenging health issues, a desire to help employees must be tempered with the practical reality of running a business. When looking at a leave request that seems to go on and on, employers need to be aware of the various legal requirements for paid leave and unpaid leave, and the potential requirement to extend leave as a disability-related accommodation.
These issues are particularly salient in the aftermath of the COVID-19 pandemic. Though the public health emergency related to COVID is slated to end in May, the impact of the pandemic on employees will likely remain for some time. Employees may continue to suffer from "long COVID," a set of post-COVID conditions with a wide range of symptoms that can last months or years after recovery from an initial infection. Employers are increasingly grappling with questions surrounding this issue—including whether long COVID is a qualifying disability—and how to navigate leave under the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and other state and local laws.
What should I do if an employee has used all of their sick and vacation time and is still ill?
If an employee has a chronic or long-term illness, an employer's response should begin long before the employee has exhausted employer-provided leave. If the employer is covered by the FMLA, it has an obligation to notify the employee that they may be eligible for FMLA leave if the employee is known to be using leave for a potentially qualifying purpose. If an employee has frequent absences related to managing a chronic or long-term illness, the employer should be working with the employee to explore whether those periodic absences qualify for FMLA leave in conjunction with the use of paid sick or vacation leave.
After an employee's sick and vacation time has been exhausted, the employer should look to any remaining FMLA leave balance, the ADA, and related state and local leave laws. If an employee has taken FMLA leave for their own serious medical condition, it is always prudent to explore whether the employee is eligible for leave under the ADA. Even employers that are not covered by the FMLA (for example, if they have fewer than 50 employees) may need to evaluate whether leave under the ADA is appropriate (the ADA usually applies to employers with 15 or more employees). If the employee is not eligible for FMLA or ADA leave, the employer might consider a non-job-protected medical leave of absence or could consider terminating the employee.
If the employee cannot work long-term, they may need to transition to short-term disability (STD) or long-term disability (LTD) if it is available. STD and LTD do not provide job-protected leave but may be used in conjunction with FMLA or another approved medical leave to provide an employee with some income protection when they cannot work for medical reasons. An employee collecting STD or LTD can still be terminated if they have exhausted all of their job-protected leave.
When is an employee entitled to accommodation for chronic illness?
To be eligible for ADA leave, an employee must have a qualifying disability. Generally, a qualifying disability is a condition that substantially limits at least one major life activity for the person. Note that this is an individualized assessment specific to the person, so a condition like long COVID may be a qualifying disability for one person but not for another, depending on how it impacts the person's life. If the chronic health issue is not a disability, the employee is not eligible for ADA leave. But when an employee does have a qualifying disability, the employer is required to engage in an interactive process with the employee to identify what accommodations may be reasonable; potential accommodations include leave.
Since when is leave (i.e., not working) considered a reasonable accommodation?
Confusion about the ADA's leave obligation is common—courts, the EEOC, and employers continue to debate whether and how much leave could constitute a reasonable accommodation under the ADA and when such leave turns into an "undue burden" on the employer. Reasonable accommodations can take many forms, including modifications like a more supportive chair or a wheelchair-accessible ramp. In certain circumstances, a reasonable accommodation may include leave. As explained by the EEOC, leave may be a reasonable accommodation "when it enables an employee to return to work following the period of leave." Disabled employees may need leave for a variety of reasons, such as to obtain repairs on a wheelchair or to train a service animal. For an employee with a chronic or recurring illness, such as long COVID, leave may be taken intermittently (for example, to seek physical therapy) or in a continuous block (for example, after FMLA expires).
Can I require my employee to take leave if they have a chronic illness?
Generally, no. Forcing a disabled employee to take leave can be an ADA violation if there is a reasonable accommodation alternative that would allow the employee to continue performing their essential job functions. In most cases it is preferable to provide an employee with a reasonable accommodation that enables them to continue working. If the employee and the employer are engaged in the interactive process of determining what accommodation might be appropriate on a long-term basis, the employer may provide a temporary accommodation until the interactive process is complete.
I have an employee who needs to use leave occasionally, but without much notice. Do I need to grant the leave?
When it is medically necessary, the FMLA allows employees to take intermittent leave in separate blocks for a single qualifying reason. It also allows employees to use FMLA leave on a reduced working schedule, reducing the employee's usual weekly or daily work schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer's operation. The ADA also permits employees to take leave on an intermittent basis. State and local leave laws, such as sick leave laws, may also require an employer to provide leave on short notice.
I'm not sure my employee is actually sick. What can I ask them? What questions should I avoid?
The ADA and FMLA both allow employers to request a medical certification from an appropriate healthcare or rehabilitation professional, under different circumstances. While employers can ask for certification for FMLA leave any time it is requested by an employee, under ADA leave the certification can be requested only when an employee requests a reasonable accommodation and the disability or need for accommodation is not obvious or known. Bear in mind that some state sick leave laws have different restrictions on when a doctor's note can be required for an employee's absence.
Generally, an employer does not need to accept a note that only says, "This employee needs leave." The employee's documentation should provide enough information to determine whether the employee qualifies for the type of leave they are requesting. If an employee exhausts FMLA leave and transitions to ADA leave, they may be asked to provide additional medical information to support the continuing need for leave if the information provided for FMLA purposes does not constitute sufficient documentation under the ADA. However, employers cannot request the employee's complete medical history, because it likely includes information unrelated to the reason for the leave. State laws may also limit the type of information an employer can request.
Do employers have an obligation to provide extended or uncertain leave?
There is no simple answer to the question "How much leave is too much?" While an extended medical leave may be a reasonable accommodation in some situations, employers are not required to provide indefinite leave under the ADA. A somewhat open-ended request for leave or a request for leave with an end date far in the future can be more complex, and it often helps to seek the advice of counsel in these situations.
An employee's absence for an excessive or indefinite period may cause undue hardship to the employer by requiring them to keep a position open for a long time. An employer is not required to provide leave if it would create "significant difficulty or expense." The ADA's undue hardship standard can be difficult to meet and can vary by employer and position; a month-long absence for one employer for a certain position may be a hardship when it is not for another employer or for a different position.
Legal guidance on these issues is constantly evolving. If you have specific questions about whether a health condition qualifies as a disability, whether a particular amount of leave is excessive, or any other leave issue, please contact the authors of this alert or any other employee in Venable's Labor and Employment Group.