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The scenario is well-known to just about every human resources manager. An employee is ill or injured and needs time off from work. The first consideration is the Federal Family and Medical Leave Act. But that legislation only requires employers to allow employees up to 12 weeks of leave and it does not even apply to employers with fewer than 50 employees. See29 U.S.C. �2611(4) and �2612(1). Next, we consider the New Jersey Family Leave Act. This statute does not require an employer to provide leave of any kind to the employee in this situation. SeeN.J.S.A. 34:11B-1 et seq. So what happens to an employee in New Jersey who either needs more than 12 weeks of leave or works for an employer with fewer than 50 employees? Is the employee entitled to an unpaid leave of absence beyond the requirements of the FMLA and the employer’s workplace policies? The answer is one people hate to hear — it depends. The reason for this answer is the New Jersey Law Against Discrimination and the Americans with Disabilities Act. The LAD prohibits an employer from discriminating against an individual because that person is handicapped, unless the nature and extent of the handicap reasonably preclude the performance of the particular employment. N.J.S.A. 10:5-4.1, -12, -29.1. Although the statute does not expressly address an employer’s obligation to make reasonable accommodations for individuals with a handicap, regulations and judicial decisions tell us that such an obligation exists. The regulations provide that an employer must make a reasonable accommodation for an employee with a disability “unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” N.J.A.C. 13:13-2.5(b). This determination is made on a case-by-case basis. The regulations provide further guidance by describing examples of reasonable accommodations and the factors to consider with respect to the undue hardship analysis. The regulations do not expressly state that an unpaid leave of absence may constitute a reasonable accommodation. The example that comes closest to this statement is one that proposes “job restructuring, part-time or modified work schedules” as an example of a reasonable accommodation. According to the regulations, several factors should be considered in determining whether a requested accommodation, such as an unpaid leave of absence, constitutes an undue hardship on the employer’s business operations. By implication, the factors listed are not the only factors that can be considered in this analysis. Those factors identified in the regulation include: The overall size of the employer’s business with respect to the number of employees, number and type of facilities and size of budget; The type of the employer’s operations, including the composition and structure of the employer’s work force; The nature and cost of the accommodation needed; and The extent to which accommodation would involve waiver of an essential requirement of a job opposed to a tangential or nonbusiness necessity requirement. The ADA is more comprehensive than the LAD in its description of the employer’s obligation to reasonably accommodate an employee with a disability. However, the ADA fails to establish a bright-line rule concerning the maximum duration of an unpaid leave of absence that an employer must provide as a reasonable accommodation to an employee with a disability. Similar to the LAD, the ADA prohibits an employer from discriminating against a qualified employee with a disability with respect to the terms, conditions and privileges of employment. 42 U.S.C. �12112(a). The ADA applies only to employers with at least 15 employees while the LAD applies to employers regardless of the size of their work force. Also unlike the LAD, the ADA expressly addresses the employer’s obligations to reasonably accommodate qualified employees with a disability. An employer engages in discrimination within the meaning of the ADA when it does not make “reasonable accommodations” to the known physical or mental limitations of an otherwise “qualified individual with a disability” unless the employer can demonstrate that the accommodation would impose an “undue hardship” on the operation of its business. The definitions for each of the quoted terms are the source for the ADA’s mandate that an employer consider an unpaid leave of absence as a potential reasonable accommodation. A “qualified individual with a disability” is an individual with a disability who, with or without reasonable accommodation, can perform the “essential functions” of the job. An employer would argue that an employee’s presence at work is an essential function of every job. But the ADA does not expressly state that presence at work is always an essential function of the job. Rather, the ADA provides that an employer’s judgment and any written job description are considered “evidence” of the essential functions of the job. Federal regulations define the essential functions of a job as the “fundamental duties of the employment position” but not the “marginal functions of the position.” 29 C.F.R. �1630.2(n)(1). Other evidence of the essential functions of a job includes the amount of time spent on the job performing the function and the consequences of not requiring the incumbent to perform the function. The ADA does not identify an unpaid leave of absence as an example of a reasonable accommodation. Rather, like New Jersey’s regulations, it provides that “job restructuring, part-time or modified work schedules” are examples of reasonable accommodations. Similarly, the ADA does not provide an exclusive list of factors to consider in determining whether the requested accommodation would impose an undue hardship on the employer. The factors listed are generally comparable to those set forth in the New Jersey regulations. Although the ADA does not expressly state that an unpaid leave of absence for an employee with a disability may constitute a reasonable accommodation, the courts have held that this statute imposes such an obligation in certain circumstances. But once an unpaid leave of absence is determined to be reasonable, how long does the leave of absence have to last before it imposes an undue hardship on an employer? The statute does not answer this question because it does not even expressly address unpaid leaves of absence as a reasonable accommodation. The statute merely provides basic guidance on the factors to consider in addressing this question. The rest is left to the judiciary. SVARNAS The New Jersey Supreme Court has not yet decided whether an unpaid leave of absence can constitute a reasonable accommodation under the LAD or how long such an absence can last before imposing an undue hardship on an employer. One panel of the Appellate Division addressed these issues in Svarnas v. AT&T Communications, 326 N.J. Super. 59 (App. Div. 1999). In Svarnas, the plaintiff, who worked as a telephone operator, was discharged due to excessive absenteeism after 22 years of service. AT&T’s attendance policy required satisfactory attendance. Company policy also allowed employees a maximum of 52 weeks of short-term disability depending on their length of service. The plaintiff suffered from asthma and was an insulin-dependent diabetic. During her employment, she had 121 incidents of absences for a total of 188.5 days and 11 disabilities (absences of more than eight consecutive days) totaling 477.5 days. She had numerous discussions with supervisors about her unsatisfactory attendance in the last five years of her employment. Approximately one year before her discharge on Oct. 25, 1993, she was in a car accident and suffered back injuries. She initially missed two days of work and then began a disability leave on Nov. 1, 1992. An independent medical examination conducted in February 1993 confirmed that she was disabled and estimated that she would be able to return to work on March 23, 1993. A second exam concluded that she would be able to return to work as of April 1, 1993. The plaintiff disagreed with these findings and her personal doctor was against her return to work; however, she returned to work half days through May 10, 1993. On May 12, 1993, the plaintiff was in excruciating pain and saw a doctor at the company’s medical department who concluded that she was unable to work and that she should be on disability leave. Her leave lasted until Oct. 25, 1993. Before returning to work, she requested to work only half days the first two weeks and a smoke-free work environment. When she returned to work on Oct. 25, 1993, her employer notified her that she was being discharged due to her overall unsatisfactory attendance record. The plaintiff filed suit asserting various claims including a claim that AT&T discharged her because it did not want to accommodate her disability. The trial court granted AT&T’s motion for summary judgment and the Appellate Division affirmed. The court ruled that there were four elements to the plaintiff’s prima facie case of disability discrimination: (1) she suffered from a recognized handicap; (2) she was performing her job at a level that met her employer’s expectations; (3) she was terminated; and (4) the company sought someone to perform the same work after she left. The court’s analysis focused on the second element — whether the plaintiff was performing at a level that met her employer’s expectations. The court concluded that she was not. In reaching its decision, the court accepted that the LAD, like the ADA, requires employers to reasonably accommodate handicapped employees. The court further accepted that a requested accommodation is not reasonable if it imposes an undue hardship on the employer or requires the elimination of the essential requirements of the position held by the plaintiff. However, the court rejected the argument that “chronic and excessive absenteeism” must be accommodated, even if caused by a disability. To support its decision, the court found that reasonably regular, reliable and predictable attendance is a necessary element of most jobs and that an employee who cannot come to work on a regular basis is not qualified for the job. Although the court’s decision appears to require employees to establish that they are capable of reasonably regular, reliable and predictable attendance to meet the second element of the prima facie case, other portions of the court’s opinion leave room for debate on this issue. For instance, the court stated that “the necessary level of attendance is a question of degree depending on the circumstances of each position.” The court also acknowledged, “whether a leave request is reasonable will turn on the facts of each particular case.” On the other hand, the court stated that “an accommodation cannot be considered reasonable if it demands irregularity” and “an indefinite unpaid leave is not a reasonable accommodation, especially where the employee fails to present evidence of the expected duration of her impairment.” NO BLANKET REQUIREMENT The trial court in Malone v. Aramark Services, Inc. , 334 N.J. Super. 669 (Law Div. 2000), addressed the question whether an employer must provide a disabled employee with an unlimited unpaid leave of absence. In Malone, the plaintiff was a longtime employee who was out of work on leave for over a year due to a work-related injury. When he informed his employer that he was ready to return to work he was advised that his position had been filled, no comparable position was available and his employment was being terminated. After he filed a complaint alleging various claims, he sought to amend the complaint to allege wrongful discharge in violation of the public policy of New Jersey. Plaintiff proposed to amend his complaint to allege that his employer had a duty to keep his job open or available for him for as long as it took for him to recover from his work-related injury. The court denied plaintiff’s motion. The court recognized that New Jersey law provides substantial protections to an employee at-will who suffers a disabling injury. The employee may have contractual rights under a collective bargaining agreement or an express or implied employment contract, rights under the FMLA or entitlement to disability benefits under the New Jersey Temporary Disabilities Law or workers’ compensation law depending on whether the injury was work-related. The court also stated that an injured worker might have a right to an unpaid leave of absence as a reasonable accommodation under the ADA. However, the court found that “there is no blanket requirement that leaves be granted to such an extent that the employee will not be able to perform the job’s essential functions.” The court relied on Svarnasfor the proposition that “under the New Jersey Law Against Discrimination, excessive absenteeism need not be accommodated even if it is caused by a disability otherwise protected by the Act.” Based on this survey of New Jersey and federal law protecting injured workers, the court concluded that it is not the public policy of New Jersey to require employers to provide employees who suffer a work-related injury with indefinite leave to recover from the injury. The court found further support for its holding based on the perceived impracticality of the proposed rule. As the court noted, having an employee out on an extended leave places significant pressure on other workers and management, who must absorb the added work or obtain and train temporary help. UNDUE BURDEN? In Walton v. Mental Health Ass’n of Southeastern Pennsylvania, 168 F.3d 661 (3rd.Cir. 1999), the court affirmed the District Court’s grant of summary judgment on plaintiff’s ADA claim for failure to accommodate her disability. The plaintiff suffered from depression and was hospitalized six times between March 1990 and December 1993. She was absent due to her illness for 21 days in 1990, 40 days in 1991, 50 days in 1992 and 14 1/2 days in 1993 before she started a leave of absence on Oct. 26, 1993. When she requested a leave of absence for hospitalization due to her depression, her employer approved the request and asked her to inform the company of the expected duration of her leave because “it is our policy that a leave without pay should not exceed 6 months.” The plaintiff initially informed her employer that she expected to return to work on Nov. 22, 1993. However, she did not do so and on Dec. 30, 1993, her doctor informed the employer that she could not return for several weeks. On Jan. 4, 1994, the plaintiff informed her employer that she would report to work on Jan. 10, 1994. The employer terminated plaintiff’s employment on Jan. 6, 1994. The court adopted a shifting burden approach to analyze the plaintiff’s claim. Under this approach, the plaintiff initially bears the burden of proving that she is qualified for the job and that if an accommodation is needed, an effective accommodation exists that would render her otherwise qualified. The plaintiff also bears the burden of demonstrating that the costs of the accommodation sought do not clearly exceed its benefits. Following this prima facie showing by plaintiff, the employer must prove either that the accommodation requested is unreasonable or that it creates an undue hardship for it. The court recognized that these two options are effectively the same thing. The court concluded that the plaintiff met her initial burden of proving that an unpaid leave was a potentially reasonable accommodation. However, the court also determined that the requested accommodation would have created an undue burden on the employer. The court did not apply the factors identified in the ADA but rather said that “a blanket requirement that an employer allow such leave is beyond the scope of the ADA when the absent employee simply will not be performing the essential functions of her position.” Contrast the court’s holding in Waltonwith the court’s holding in Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998). In Criado, the plaintiff had an anxiety disorder that worsened to the point where she requested an accommodation in June 1994. Her doctor suggested that she take a one-month disability leave, and she submitted a request for leave to begin on June 22. The request was not granted until mid-July and was approved through Aug. 1 because that was the date listed on the request. Plaintiff was not well enough to return to work in August, and her doctor tried to convey this to IBM. IBM claimed that it did not receive this information. Thus, on Aug. 17, plaintiff’s supervisor called her and stated that her employment was terminated because her leave of absence had not been extended past Aug. 1 and she had failed to return to work. Plaintiff’s doctor told IBM that the plaintiff’s condition would improve with more time away from work, but IBM refused to reconsider. A jury returned a verdict in favor of plaintiff and the court denied IBM’s motion for judgment as a matter of law. The court rejected IBM’s argument that the plaintiff was not a “qualified individual with a disability” and that the accommodation plaintiff requested was unreasonable. The court reasoned that “a leave of absence and leave extensions are reasonable accommodations in some circumstances … and whether the leave request is reasonable turns on the facts of the case.” Thus, the court determined that because the plaintiff’s leave would be temporary and IBM provides all employees with 52 weeks of paid disability leave, the plaintiff’s leave would not have imposed an undue burden. Criadorequired a one-month leave of absence and sought to extend it after one month while Walton required a two-and-a-half-month leave of absence. Criado’s employer provided all employees with 52 weeks of paid disability leave while Walton’s employer had a policy that a leave of absence without pay should not exceed six months. The ADA applied in both cases, but the result for each plaintiff was quite different. The reason for this difference is not clear. Although the Third Circuit found Walton’s request for a two-and-a-half-month leave of absence to be unreasonable, other courts have concluded that unpaid leaves of absence of greater duration may be reasonable. For instance, in the case of Cehrs v. Northeast Ohio Alzheimer’s Research Ctr., 155 F.3d 775 (6th Cir. 1998), the court denied the employer’s motion for summary judgment on its former employee’s ADA claim. The employee required a leave of absence from Nov. 26, 1993, until March 1, 1994. The court held that a genuine issue of material fact existed concerning whether the proposed leave of absence imposed an undue hardship on the employer. In reaching this conclusion, the court determined that uninterrupted attendance in all instances may not be an essential function of a job. As support for this proposition, the court noted that pursuant to the FMLA, “Congress has already determined that uninterrupted attendance in the face of a family medical emergency is not a necessary job requirement and does not unduly burden employers.” Employers could argue in response to this logic that the FMLA applies to employers with 50 or more employees while the ADA applies to employers with as few as 15 employees and the LAD applies to all employers regardless of the size of its work force. In addition, even if Congress has determined that the FMLA does not impose an undue burden on employers, such a determination does not necessarily mean that Congress wanted the ADA to supplement the FMLA and provide employees with disabilities with even greater leave rights. Considering the various conclusions the courts have reached when presented with this issue, employers and employees are left without a bright-line rule for determining how much unpaid leave is necessary under the ADA and the LAD. The best that can be said is that cautious employers should address each case individually and not apply a rigid policy concerning unpaid leaves of absence for employees who are either handicapped or have a disability. It is difficult to predict what the outer limits of every employer’s obligation might be when faced with a request for a leave of absence as a reasonable accommodation. It is likely that the judiciary will not provide that answer but, rather, will continue to decide each case based on the particular circumstances presented. The only way we will have a clear expression concerning the reasonableness of an unpaid leave of absence as an accommodation is if the Legislature sets specific standards or limits by statute. Until that happens, the answer will continue to be the same — it depends. Vincent N. Avallone and Dawn Marmo are associates in the employment law practice group at Newark, New Jersey’s McCarter & English.

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