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.