June 12, 2017

June 09, 2017

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What Should An Employer Do When An Ill or Injured Employee Has No Available Leave?

When an ill or injured employee fails to return to work after they have exhausted all available leave (or were never eligible for leave in the first place), an employer cannot automatically terminate the employee.  The courts in New Jersey have held that a “reasonable accommodation” for a disability includes providing additional, unpaid leave to an employee beyond what is required by any specific law (such as the Family Medical Leave Act), so long as doing so is not an “undue hardship” on the employer.

Undue hardship is a high standard to meet.  Determining whether or not extending a leave of absence is an undue hardship must be based on an individualized assessment of current circumstances.  Such an assessment must include consideration of a wide range of factors, including, but not limited to, the cost of the accommodation and the impact it will have on the employer.  A New Jersey employer’s failure to properly understand and analyze all of the relevant factors could open the door to legal action by the employee alleging disability discrimination.

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About this Author

Ari G. Burd, Giordano Law Firm, Labor Employment Attorney

Mr. Burd practices in both the Labor and Employment Law Practice Area and the Health Care Practice Area. In the Labor and Employment Practice Area, Mr. Burd devotes his time to litigation and counseling employers with regard to traditional employment and labor related issues. Mr. Burd has extensive experience in both the state and federal courts in areas including retaliation, wrongful termination, wage and hour, sexual harassment and race, age, gender and disability discrimination. Mr. Burd also has considerable experience in assisting negotiating and drafting employment related...

Jeri L. Abrams, Giordano Halleran, Drafting Employment Documentation Lawyer, Workplace Litigation Attorney

Jeri focuses primarily on employment law, with an emphasis on drafting and negotiating complex employment-related documentation, such as executive employment, consulting, restrictive covenant, commission, bonus, retention, change-in-control and severance agreements. Jeri counsels employers on a broad range of employment matters, including hiring, disciplining and terminating employees, family and medical leaves, disability leaves and accommodations, anti-discrimination and anti-retaliation laws, wage and hour compliance, and reductions in workforce. She works closely with management, in-house counsel, and human resources personnel in the development and implementation of employment policies and handbooks that comply with applicable law and are consistent with the employer's unique practices and organizational culture. Jeri also advises clients on the employment aspects of M&A deals and other corporate transactions.