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Employee Requests for Medical Leave: Self-Storage Owner Rights and Obligations

There are several laws that come into play when a self-storage employee seeks medical leave. The following is a summary of what employers must consider when evaluating staff requests for time off.

August 30, 2017

9 Min Read
Employee Requests for Medical Leave: Self-Storage Owner Rights and Obligations

By Ellen Storch

Imagine the following scenario: The manager of one of your self-storage properties, Joe, tells you he’s been diagnosed with cancer. The good news is that it’s likely treatable with chemotherapy and surgery. The bad news is he needs time off for treatment, and his doctors don’t know exactly how long he’ll be unable to work. They estimate he’ll need approximately two months.

You’re sympathetic. However, he’s only been employed with your company for five months and has already used all his paid time off (PTO). Do you have to grant his request for leave, even though he can’t tell you precisely how long he’ll be out? If you allow him to take leave, do you have to pay him? If so, how much?

Let’s add a layer and say Joe isn’t an effective property manager. You were thinking about replacing him before you learned about his illness. Can you still fire him?

The answer to these commonly asked questions is, “It depends.” Several laws come into play when employees seek medical leave. The following is a summary of what employers must consider when evaluating these requests.

Leave Entitlement

First, you must consider whether Joe is entitled to leave under the Family and Medical Leave Act (FMLA). The FMLA requires certain employers to grant up to 12 weeks of job-protected leave to employees with a “serious health condition.” If you employ 50 or more people within a 75-mile radius, your business is covered by the FMLA.

Joe’s cancer is considered a serious health condition, but is he eligible for FMLA leave? Employees don’t become entitled until they’ve worked for you for 12 months. They also must have worked at least 1,250 hours during that year. Since Joe has worked for only five months, he’s not eligible.

Notably, if Joe had been employed for a year and worked the requisite hours, he would be entitled to up to 12 weeks of job-protected FMLA leave. However, since he’s already used all his PTO, you wouldn’t be obligated to pay him during that time. If he had PTO remaining, depending on how your FMLA policy is written, you could require him to use the residual during his leave.

Next, you must evaluate your obligations under the Americans With Disabilities Act (ADA), which covers employees even before their first day of work, during the hiring process. The ADA applies to your business if you employ more than 15 people. In many jurisdictions, businesses with fewer than 15 employees are governed by similar state or local laws.

If an employee is considered “disabled” under the ADA, employers must provide “reasonable accommodations” if doing so will allow the staff member to perform his essential job functions. The definition of disability under the ADA is broad. Joe’s cancer renders him disabled under the law since, among other factors, he’s substantially limited in the major life activity of normal cell growth.

An accommodation is considered reasonable and must be provided unless it would cause the employer “undue hardship.” This analysis must be done on a case-by-case basis. An accommodation is likely an undue hardship if it would significantly disrupt operation, fundamentally alter the employee’s job, substantially impact the employer’s ability to serve customers or require the employer to incur significant overtime expenses. The employer’s size and resources must be considered. If an accommodation would be costly to implement, especially in light of the employer’s financial resources, it’s more likely to be considered an undue hardship.

Medical leave is a frequently requested accommodation. It may be considered reasonable even if, like Joe, the employee isn’t entitled to FMLA leave. Indeed, even if employees are entitled, the ADA may require employers to allow additional leave beyond the 12 weeks. Notably, an employer may be obligated to provide leave for a disability even if it doesn’t offer leave to other employees and even if, like Joe, the employee has already used all available PTO.

Determining Undue Hardship

How do you determine if Joe’s request for a two-month leave would create an undue hardship, allowing you to deny it? You must consider the amount of leave requested and how Joe’s absence impacts your operation. For example, let’s say you employ 100 people and have multiple storage facilities in proximity. At Joe’s site, you employ two assistant property managers, and they can absorb his functions without incurring significant overtime. Under these circumstances, his leave wouldn’t create an undue hardship.

By contrast, let’s say you own two facilities that are 50 miles apart. Joe lives on site, is the only full-time employee, and you don’t have staff who could cover his duties. Assume you couldn’t easily find a temporary employee who’d be willing to take over his job for two months without the onsite housing. In this scenario, granting the requested leave would probably be considered an undue burden. As such, you could deny the request, even if that means Joe must resign. Notably, if instead of requesting a two-month leave, Joe requested indefinite leave, it would automatically be considered an undue hardship, according to the Equal Employment Opportunity Commission.

Employees who seek leave as an accommodation often seek further adjustments, which must be evaluated on an individual basis. For example, let’s say you granted Joe’s request for two months off. However, he e-mails you after his fifth chemo treatment and tells you it’s not working as the doctors had hoped and he’ll need another month. Even though you determined the original request was reasonable, you should separately evaluate this new appeal.

Consider the impact of the two months of leave Joe has already taken and the impact on your operation of granting another month. You may have been able to lean on the assistant managers to absorb his duties for two months, but perhaps doing so required you to change their work priorities. Maybe auctions have been delayed, impacting cash flow. If the business can’t reasonably sustain the reallocation of duties for another month, you can likely deny the request for additional leave.

Interactive Process

The ADA requires you to engage in an “interactive process” with Joe. This means you must have a dialogue with him to determine how much time he needs and why, and whether you can provide the requested leave without suffering an undue hardship.

The information needed can vary from one employee to another. Sometimes the disability may be obvious. In other situations, you may need more details to confirm the condition is a disability under the ADA. However, most of the focus will be on the specific reason for the leave, whether for a block of time (two months) or intermittent (such as one day per week for four weeks). You should also know when the need for leave will end.

Employers are often reluctant to ask employees for details. However, they’re permitted to ask about the need for leave, the amount and type required, and whether reasonable accommodations other than, or in addition to, leave may be effective. This can, perhaps, result in the need for less time away from the job. With the employee’s permission, you can ask his doctor to confirm or elaborate on the employee’s statements.

Further, you can request additional information if the need arises. For example, if Joe asks you for another month off because his treatment isn’t working, you can ask request details from him or his doctor. You can also ask whether further extensions may be requested and how likely it is that Joe will be able to return to work if you grant the request. You could discuss with Joe whether an alternative accommodation would meet his needs. Perhaps he could return to work sooner if he was permitted to work part time for a couple of weeks.

It’s crucial to document the interactive process so you can prove that you’re engaged in it. Send letters or e-mails confirming what was discussed and when, and keep track of each conversation.

Working With Restrictions

What if Joe is able to return to work at the end of two months but isn’t fully recovered? You can’t simply require him to be entirely fit for duty at his old job. Instead, you must have a dialogue with him to determine what accommodations he needs and whether they’re reasonable. You have the right to find out why the restrictions are required and how long they may be needed.

If you can’t grant his specific requests, you must work with him to determine whether alternate accommodations could allow him to perform the essential functions of his job. If you can demonstrate that his requests would cause an undue burden, but you have another position available for which he’s qualified, you could propose that he take that job instead.

Compensation

Neither the FMLA nor the ADA oblige employers to pay staff while on leave, however, some jurisdictions require it. If you’re in an area that requires employers to carry short-term disability insurance—or if you elect to carry it—you must provide Joe with the information necessary to apply for the benefit.

Termination

Assuming Joe is an at-will employee, you could terminate him instead of considering his request for leave. However, the termination could give rise to liability under the ADA or similar state or local laws. Joe could allege you fired him because of his disability, you failed to accommodate his request for leave, or the termination was retaliation for his seeking an accommodation. Your chances of defeating such claims are tied directly to the quality of proof you offer to establish that you were planning to terminate him before he told you he was disabled and needed leave.

For example, you could likely successfully defend such claims if, the day before Joe told you about his cancer and his need for time off, you sent an e-mail to your human resources manager, instructing her to terminate him at the end of the week for poor performance. However, if you didn’t document Joe’s ineffective performance or your plans to fire him before he told you about his diagnosis, liability would be far more likely.

Crucial Takeaways

If an employee tells you he needs time off for a medical issue, consider whether he’s entitled to FMLA leave. If you’re not covered by the FMLA or the employee isn’t eligible, you must still have a dialogue with him about the request. Document all communication.

Consult with your employment lawyer before denying the requested leave to ensure the reasons for the denial amount to an undue burden under the law. Finally, refrain from terminating the employee unless your attorney says you have the legal right to do so.

Ellen Storch is a partner with Kaufman Dolowich & Voluck LLP, where she defends international, national and local employers as well as public employers and not-for-profit organizations in various types of employment litigation. Her practice includes discrimination and harassment cases, restrictive-covenant disputes, and wage and hour claims. She also counsels employers regarding the panoply of laws that govern and affect the employment relationship, with special emphasis on litigation-avoidance strategies. She’s often quoted as an employment-law expert in national and local publications. For more information, call 516.681.1100; e-mail [email protected]; visit www.kdvlaw.com.

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