October 25, 2021

Volume XI, Number 298

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October 22, 2021

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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.

© 2021 Giordano, Halleran & Ciesla, P.C. All Rights Reserved National Law Review, Volume VII, Number 97
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About this Author

Ari G. Burd, Shareholder, Giordano Law Firm, Labor & Employment, Cannabis Law, Health Care
Shareholder

Ari devotes his time to assisting and defending employers with regard to traditional employment issues. He frequently counsels employers for compliance with New Jersey laws and has extensive transactional and litigation experience.

Ari has litigated employment matters throughout the state, having made appearances in almost every Superior Court in New Jersey, as well as before both Federal District Courts in New Jersey and the Federal and State Courts in New York.  These actions have involved a diverse range of claims such as wrongful discharge, discrimination, harassment,...

732-741-3900
Jeri L. Abrams, Giordano Halleran, Employment Documentation Lawyer, Workplace Litigation Attorney,Labor & Employment
Shareholder

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...

732-741-3900
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