Can an employer terminate an employee who exceeds the maximum medical leave?  Many employers seek to employ a Maximum Leave of Absence Policy to establish boundaries for employees on extended leave.  However, employers should tread carefully.  The Equal Employment Opportunity Commission (EEOC) frowns upon absolute termination policies and has sustained claims where employers have failed to observe employee rights and/or failed to participate in the interactive policy at the point of termination.  “The era of employers being able to inflexibly and universally apply a ‘leave limits policy’ without seriously considering the reasonable accommodation requirements of the ADA are over.”

Employers can have a Maximum Leave Policy.  A Maximum Leave Policy sets a deadline for return to work following an extended leave usually between six (6) months and one year.  It should be tied to legitimate business needs/purpose.  It should be reasonable in duration and application based on the size and scope of business.  Employers must, however, determine what if any additional laws and regulations apply at the time of anticipated termination before taking final adverse action and separating the employee from employment.

If an employer has fewer than 15 employees, it is not subject to federal ADA regulations and may not need to consider reasonable accommodation.  Be careful of state statues that utilize lower thresholds and apply similar regulations.  The Pennsylvania Human Relations Act, for example, applies to employers with 4 or more employees and has largely the same application.

If state or federal laws do apply, then employers contemplating termination for breach of the Maximum Leave Policy must consider what other protections may exist and what other precautions must be taken.  Despite the extended leave, employers may need to consider additional leave if recovery or the ability to return to work is imminent.  Employers should also carefully consider whether all rights under the FMLA have been exhausted.  In the case of work-related injuries, employers should determine what impact, if any, ongoing workers’ compensation liability might add to the final decision.  Finally, employers need to consider what additional policies, like short term and long term benefits, are available and what they mean to termination.  In short, the deadline imposed by the No-Fault Maximum Leave Policy is not the end – it is the beginning of the employer/employee interactive process to determine if separation is appropriate and possible.

The interactive process is an ongoing dialogue with the employee to explore potential accommodations to the employee without undue hardship to the employer so as to retain the employee in gainful employment.  Continued unpaid leave can be an example of reasonable accommodation in certain circumstances.  Employers also need to consider then open and available positions and determine whether the employee is qualified for the job and able to return with or without accommodation.  While the EEOC has concluded that employers must make an individual assessment to determine how long of a leave request is reasonable, it has confirmed that requests for indefinite leave are not reasonable and need not be granted.

Employers should maintain contact with the employee while on leave.  Ask the employee to provide the employer with updated medical information regarding his/her ability to return to work, and what restrictions, if any, might apply.  Exhaust all necessary methods of communication including letter (regular and certified), voicemail, and email (PDF letter).  Make certain the employer sets reasonable time tables for response and confirms the consequence of the employee’s failure to respond.  Evaluate all reasonable options for accommodation.  Discuss the options with the employee and offer a reasonable accommodation to the employee if you can.  Solicit additional options from the employee.  Entertain the concept that they might understand their position and physical needs better than the employer.  Document discussions and proposed accommodations.  Explain why they were not reasonable and the process that led to the final determination to separate.  Be objective and equitable.

Establishing a Maximum Leave Policy can be complicated depending upon the numerous state and federal laws, the scope of employer-sponsored benefits and the size and breadth of the company.  Writing an effective policy should be coordinated through legal counsel.  Similarly, navigating the application of the policy to a specific case should be done only under the guidance of competent legal counsel, as not all requests for accommodation are deemed reasonable and therefore need not be granted.

Please contact one of the attorneys in our Employment Law Group at 1-888-488-2638 for assistance.