Q & A: When Leave is Exhausted


Question Corner

When Leave is Exhausted

By Jason R. Mau

Q: We have an employee who has been out on short-term disability (STD) leave after exhausting his Family and Medical Leave Act (FMLA) leave. We want to terminate him since he isn’t able to come back and there are no available accommodations. He has exhausted his STD benefits, and he has not communicated with us about extending to long-term disability (LTD). Is it safe to terminate him?

A: Short answer, no; the proximity to the FMLA leave and ADA requirements may enhance the potential liability for such a termination.  Automatically terminating the employee for exhausting his current leave and not communicating yet about the need for LTD is prohibited if his disability is protected under the ADA.  An employee with a protected disability that is granted additional leave is entitled to return to his same position unless you can demonstrate that holding it open would impose an undue hardship.  Even if holding open the position is an undue hardship, you must also consider whether there is a vacant, equivalent position the employee can be reassigned to if he can return after additional leave.  The LTD must be considered as a reasonable accommodation unless it too would cause an undue hardship. 

Q: Our company will be changing from printed W-2s to electronic W-2s for current and former employees. Do we have any legal obligation to notify employees of the change or need to take any additional action to inform them?

A: Yes, the IRS requires that employees must have affirmatively consented to receive a W-2 in an electronic format.  Prior to the consent, you are required to provide “a clear and conspicuous disclosure statement” that informs the employees of the change, the necessary consent, procedures for withdrawal of consent and updating information, software requirements, and a statement that if consent is not given, a paper copy of the W-2 will be furnished.

Q: One of our employees is having shoulder surgery and will be out only three days. He has asked us to buy him a stand-up workstation, which costs around $300. His surgery isn’t work-related. Our issue is that if we buy him one, other employees will ask for one. Are we required to buy the desk?

A: Since the employee is essentially asking for an ADA accommodation, the important question is whether the medical condition for which his non-work- related surgery is necessary can be considered a disability.  A disability under the ADA requires an impairment that limits one or more major life activities.  An impairment that is expected to last less than 6 months is not recognized as a disability.  So if the impairment does not qualify as a disability or is not expected to limit a major life activity for more than 6 months, you are not required to enter into an interactive accommodation process or purchase the desk.

Q: In addition to the required state and federal posters, are there any company policies that need to be posted in our common area?

A: Unless a collective bargaining agreement or your employment handbook says otherwise, in Idaho there is no requirement to post any policies beyond those required by the state and federal government in the common area.

Jason R. Mau is an attorney with Greener Burke Shoemaker Oberrecht, P.A.  He can be reached at 208-319-2600 or jmau@greenerlaw.com