Does my employer have to give me more time off as a reasonable accommodation for my disability?

Question:

I work for a small company with only 20 employees. I've had long-term back problems because of a car accident several years ago. Recently, I had to have back surgery, and I'm still recovering. My doctors aren't sure if I'll recover fully. But, they are confident that I'll be able to do my job with some accommodations to my work space, including replacing my desk with a standing desk. I've already used up all of my accrued sick and vacation time, and I will still need to be out of work for several more weeks. When I'm ready to return, I'll need to work part time at first. The company owner has been really understanding and kind, but is starting to sound concerned about when I'll be back. I'm hopeful that we'll be able to work something out, but I'd also like to know what my legal rights are in this situation.

Answer:

Even though your employer is small, it is large enough to be covered by the federal Americans with Disabilities Act (ADA), which prohibits employers from discriminating against employees with disabilities. It sounds like your condition meets the definition of a disability under the ADA. (See Disability Discrimination in the Workplace for more on what counts as a disability.) This means you are entitled to a reasonable accommodation, which could include more time off, unless it creates undue hardship for your employer.

When an employee with a disability needs more time off than would otherwise be allowed under an employer's usual policies or practices, the employer may not simply dismiss the request out of hand. Instead, the employer must grant the request as a reasonable accommodation, unless it would impose an undue hardship. An undue hardship is excessive burden or expense, taking into account the size and resources of the employer.

Undue hardship is determined on a case-by-case basis, considering all of the facts and circumstances. Courts look at the following factors in deciding whether a particular accommodation creates an undue hardship:

  • the nature and cost of the accommodation
  • the size and resources of the employer and, if applicable, the facility where the accommodation would be required
  • the nature and structure of the employer, and
  • the impact of the accommodation on the employer's operations.

In your situation, a court would look at how difficult it would be for your employer to hold your position open for a few more weeks and allow you to return to work part time for a while. Is your job of such vital importance that it must be filled more quickly? Could your employer hire temporary help or move some of your job functions around to get the work done? If so, you have a good argument that your employer is required to accommodate your request. On the other hand, if your employer will have to hire a regular employee to do the work (perhaps because it is too specialized for temps or to hand around to your coworkers), accommodating your time off might be an undue burden.

You may also have rights under state laws. While your employer is too small for the federal Family and Medical Leave Act (FMLA) to apply, some states have similar laws that apply to smaller employers. To find out what your state requires, select it from the list at State Family and Medical Leave Laws.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
NEED PROFESSIONAL HELP ?

Talk to a Wrongful Termination attorney.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you