Never-Ending Leave Not Required, But Look Beyond FMLA Leave


Joshua Zuckerberg, a partner in Pryor Cashman’s Labor and Employment Group, has written an article entitled “Never-Ending Leave Not Required, But Look Beyond FMLA Leave.” The article was published on September 13, 2010 by the Society For Human Resource Management.

Zuckerberg notes that many employers, from mom and pop stores to Fortune 500 companies, use a rigid approach when handling an employee’s request for leave, which exposes the company to serious legal risk. These employers evaluate whether the employee is eligible for leave under the Family and Medical Leave Act (FMLA). If the employee is eligible, they grant him or her

up to 12 weeks of FMLA-mandated leave. However, once the FMLA leave is exhausted, the employers expect the employee to return. If the employee is unable to return, these employers move to terminate the employee.

Unfortunately for employers, the Equal Employment Opportunity Commission (EEOC) and certain federal and state courts hold the view that such a practice is unlawful. The EEOC and many state and city human rights agencies argue that under the Americans with Disabilities Act (ADA) and local human rights laws, an employer must “reasonably accommodate” any physical or mental condition that qualifies as a “disability.” In addition, these courts and agencies believe that an employee’s request for leave beyond 12 weeks may be “reasonable” in certain situations.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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