The doctor doesn’t know when an employee can come back from disability leave; do I have to hold her job?

July 29, 2016

Topics: Disability and Leave Obligations

How long an employer is required to hold a job for an employee on disability leave depends on a number of factors, including the size of the company, the nature of the employee’s job, and any state laws that might apply.  However, most jurisdictions do not require an employer to hold a job for an indefinite amount of time, especially if the employer can demonstrate that doing so would be an undue hardship.

Employers with 50 or more employees are likely covered by the federal Family and Medical Leave Act (“FMLA”).   Under that law, eligible employees may be entitled to up to 12 weeks of job-protected unpaid leave.  The FMLA, however, does not require that the job be held beyond the 12 weeks.

If an employee is not eligible for FMLA leave, or has used up his or her FMLA leave entitlement, any analysis of how long to hold an employee’s job is done under the applicable disability discrimination laws, such as the federal Americans with Disabilities Act (the “ADA”).  Under the ADA, the employer must hold a disabled employee’s job for a reasonable period of leave to enable the employee to get better and return to work.  If the employer can show that holding the job would not be reasonable and would cause undue hardship on the company, the job likely does not need to be held.  To show undue hardship, the employer may have to show that the position is an important one that needs to be filled, and that the job’s responsibilities cannot be handled temporarily by other employees or temporary help.  Many courts have found that open-ended leave when no return to work date can be articulated would cause undue hardship to the employer.

If holding the original job would cause undue hardship, the employer can probably fill it when an employee cannot provide an expected return to work date.  But, it likely would be prudent not to let the employee go just because their original job has been filled.  This is a very fact specific situation that is best addressed through consultation with counsel.  For optimum protections, employers can wait to see how much leave the employee actually takes, and then determine whether there is another job available for which the employee is qualified when the employee is ready to return.   If there is no equivalent job available, the employer can offer the employee a vacant job at a lower level, if the company chooses to do so.  Bottom line, however, is that when an employee appears to be on indefinite leave, the employer may not need to hold the employee’s old job until the employee can return to work.

Under some of the disability discrimination laws, an indefinite leave is automatically considered to be unreasonable.  However, under others, such as that promulgated in New York City, an employer needs to show it would be an undue hardship to hold a job indefinitely.  Consult with counsel in these situations to be sure you are complying with the laws applicable to your business.