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Question:
Sandy has used all her FMLA leave and is now requesting a leave under the ADA as an accommodation. Sandy initially submitted our ADA Medical Evaluation Certification form, and we were able to grant her a conditional leave accommodation. Sandy, on the other hand, presented a Work Status Report for an ADA leave extension. Is the extended Work Status note acceptable, or do we require a new ADA certification?
Answer:
Any time an employee requests an extension of an ADA Leave accommodation it is important to re-engage in the interactive process. You should never accept a Work Status Report as it does not address whether the employee and the medical provider clearly discussed a valid return to work date, even if the return to work date is only their best estimate. There are two areas of concern: number one, we evaluate the efficacy of the initial accommodation (why was the RTW date not valid), and two, we evaluate if leave as an accommodation is reasonable as it appears the original accommodation was ineffective in providing the employee an opportunity to return to work and perform all of the essential functions of their job. If the employee is not able to return to work at the end of the first leave accommodation the leave accommodation was not effective. You will now need to determine why the employee believes additional leave will allow them to come back to work and perform all their essential job functions. ADA is not FMLA, it is not reasonable to continue to extend a leave under the ADA. If the employee is not able to confirm for you that the extended leave, as an additional ADA accommodation, will allow them to return to work and perform all the essential functions of their job, it is not a valid accommodation and it could be considered unreasonable and an undue hardship. As a result, make sure you engage in an interactive process with the employee to allow them to clarify that the extended leave date is a true return to work date and that they do not anticipate extending it again. If the employee is not sure if the extended leave will allow them to return to work, then they are requesting an unreasonable accommodation that would be considered an undue hardship because the employee is asking for unreliable, unpredictable leave as an accommodation.
This type of clarification of the ADA Good Faith meeting dialogue requires a consistent, predicable approach with clear communication with the employee so they understand extending leave under the ADA differs from extending leave under FMLA. Provide the employee clear, predictable, and consistent criteria required for leave as an accommodation under the ADA. Continuing to extend leave under ADA can be considered an unreasonable request and can be an Undue Hardship for the employer. However, this is something the employee must be fully informed about before the first ADA leave accommodation is provided so there is no confusion regarding how leave as an accommodation is analyzed for reasonableness.
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