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Disability discrimination and reasonable accommodations

Exhaustion of FMLA leave does not automatically foreclose additional leave. Massachusetts law is more flexible.

When convalescing from a disability related illness, employees can’t always pinpoint the exact date of their return to work. They may need additional time. Some employers mistakenly believe that they have no obligation to give an employee additional time off once the employee has exhausted all his or her leave under the federal Family Medical Leave Act (FMLA). Although FMLA leave expires after 12 weeks, Massachusetts disability law is more flexible and is independent of the FMLA. Massachusetts law requires the employer to talk with the disabled employee about other options. The employer must engage in what is known as an “interactive dialogue.”

If the employee can offer a general time frame for his/her return to work and has a plan for returning in that time frame, the employer has to treat this proposal as the beginning of the interactive process, not the end. If an employee is making good faith efforts to return to work, even if the employee has exhausted FMLA leave, the employer can’t unilaterally refuse to extend leave to the employee.

When leave transforms from time off under the FMLA to a request for a reasonable accommodation, the employer is allowed to ask for additional information. Through this documentation, the employer can better determine: (1) how much leave is required; (2) if the additional leave would create an undue hardship on the business; and (3) whether there is a reasonable accommodation that will enable the employee to return sooner. A form letter can ask the employee to provide an anticipated return to work date with as much specificity as possible, and whether the employee will need a reasonable accommodation upon return to work.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464
617-969-2900

pam@pamsmithlaw.com

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