group of ees on leave.jpgFor ages, the employer community has awaited guidance from the EEOC regarding how much additional leave, if any, an employer is required to provide an employee as an ADA reasonable accommodation when an employee is unable to return to work after exhausting FMLA leave. (Depending on what the EEOC says in that eventual guidance, however, employers may regret asking for it in the first place.)  

In the meantime, courts occasionally provide us with a few nuggets of wisdom about what employers should and shouldn’t do when an employee asks for more leave than the FMLA permits.  We regularly discuss this topic on our blog, most recently here and here.  

In a recent ADA lawsuit filed by the EEOC, an employer shows us how it shouldn’t be done.  And its actions serve to educate the rest of us.


Crystal Wirstiuk worked as a Human Resources Coordinator for a company that monitors electricity in the Midwest.  In 2009, she took 12 weeks of FMLA leave to bond with her newborn baby, but shortly after returning to work, she suffered from bouts of “high anxiety and depression” as a result of post-partum complications.  Although Crystal had no additional FMLA leave available, her employer granted a 30 day leave of absence after she requested it.  

After a few weeks, Crystal asked for more time off and provided medical documentation from her treating physician indicating that her “post-partum complications had not yet been resolved and that she could return to work” in 30 another days.  In total, Crystal would be off work for about 60 days.

The employer denied the second extension because Crystal’s absence created “work flow issues” within the HR department.  In any event, the employers was not sure she’d return to work, since she was not able to return after the last extension of leave it gave her.  

Well, ok.  I’ve seen employers give far worse rationale when faced with similar situations.  But here’s where Crystal’s employer really went wrong: An entire two months after it terminated Crystal’s employment, her employer offered Crystal’s position on a permanent basis to the individual who had temporarily been performing her duties while she was absent.  

The temporary employee’s response? Sure, but only if I can start in three months.

The employer’s response?  Sure, we’ll just hire a temp to cover the position until you can start.

“Whaaaaat!?!” said the court, who refused to dismiss the EEOC’s ADA failure to accommodate claim.  EEOC v. MISO (pdf)

Insights for Employers

This is a head scratcher if you root for employers.  On one hand, Crystal’s employer stated that her continued absence was creating work flow issues within her department, suggesting that her continued absence had created an undue hardship on the company.  On the other hand, the employer did not seek to permanently fill her position for two months after her termination, a time period that later was extended to five months when it accommodated the new employee’s request to start later.  This delay alone called into question the employer’s basis for denying Crystal’s leave request.  

As we know, there are no hard and fast rules when deciding how much additional leave you must provide an employee under the ADA.  Each case stands on its own, and rightfully so.  In a previous post and webinar, I explain the factors employers should consider when determining whether their employee’s continued absence creates an undue hardship.  However, the case above reminds us of a few points to keep in mind:

  1. If it’s going to take you two months to offer the position to a candidate (let alone the one who has been performing the job!), it will be difficult to show that it is an undue hardship to grant the two month leave of absence.  Keep in mind that courts will consider the recruiting time period when deciding whether your decision was reasonable or not.
  2. The easier it is for a temp employee to fill the position, the longer the leave typically needs to be. Here, the employer suggested that its work flow was being disrupted by Crystal’s continued absence.  However, its reasoning was belied by its actions, as it filled her position with a temp employee for another five months.
  3. By no means is an HR coordinator normally a fungible position, but generally speaking, the more fungible the position, the longer the leave needs to be.  If a position can be filled with a temporary employee for long periods of time, it usually means the employer will have a more difficult time showing that it is an undue hardship to provide additional leave.
  4. If you’re skeptical about whether the employee will come back after she asks a third, fourth or fifth time for additional leave, don’t be afraid to ask the employee’s physician to explain why the additional leave did not allow the employee to come back to work when he/she said the employee would.  You may not get a satisfactory answer, but in doing so, you send a message to the employee and physician that you’re onto their cat-and-mouse games, and you mean business. Like the umpire who gives you the next close call after you legitimately complain about the previous one, the doctor just might do the same for you. 

Hat tip: Eric Meyer, who first covered this case last week on his blog