The short answer is no. While workers’ compensation and disability are statutes that provide a pay benefit to employees out of work for qualifying reasons, these laws do not require an employer to hold an employee’s job for the entire time they are out. They do, however, prohibit terminating an employee because they are on workers’ compensation or disability. Whether an employer has to hold an employee’s job or not, and for how long, is a fact-dependent legal analysis.
If an employer has 50 or more employees (on the payroll for 20 or more weeks within a year), an employer must analyze the employee’s leave and job protection under the Federal Family and Medical Leave Act[1] (“FMLA”).
If an employee has used all of the time provided under the FMLA for job protected leave and needs additional leave, or the employer is not large enough to comply with FMLA, the employee’s leave and job protections must be analyzed as a reasonable accommodation under the Americans with Disabilities Act[2] or New Jersey Law Against Discrimination[3]. As such, the employer should provide the employee with a form to be completed by the employee and their doctor regarding the cause of the leave and the accommodations needed, including but not limited to time off. The employer is entitled to an anticipated return to work date for the employee. After receiving the reasonable accommodation paperwork, including the anticipated return to work date, an employer can determine whether the requested leave creates an undue hardship which would allow the employer to refuse to provide the employee with the requested leave time.
An employer does not have to provide reasonable accommodation(s), including time off, if the accommodation would cause an "undue hardship" to the employer. An employer’s unsupported generalized determination of an “undue hardship” will not suffice. Rather, an undue hardship determination must be the result of an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense to the business.
Pursuant to the Americans with Disabilities Act, a determination of undue hardship should be based on several factors, including:
- the nature and cost of the accommodation needed;
- the overall financial resources of the facility, making the reasonable accommodation; the number of persons employed at the facility; the effect on expenses and resources of the facility;
- the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
- the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;
- the impact of the accommodation on the operation of the facility
Under New Jersey Law, N.J.A.C. 13:13-2.5 (undue hardship under the NJ Law Against Discrimination[4]) states:
In determining whether an accommodation would impose undue hardship on the operation of an employer's business, factors to be considered include:
- The overall size of the employer's business with respect to the number of employees, number and type of facilities, and size of budget;
- The type of the employer's operations, including the composition and structure of the employer's workforce;
- The nature and cost of the accommodation needed; and
- The extent to which accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.
It is important to note that a leave for an indefinite amount of time is not considered a reasonable accommodation.
Please also note that the requirements for a reasonable accommodation and undue hardship differ under the Pregnant Worker’s Fairness Act (which applies to employers with 15+ employees): https://www.wilentz.com/blog/employment/2024-07-17-what-is-the-pregnant-workers-fairness-act
Takeaway: Leave issues are complicated and often involve many different, yet intertwined laws. For assistance with your leave questions, please reach out to Tracy A. Armstrong, Esq., or any other member of our Employment Law Team.
[1] Applies to employers with 50+ employees on the payroll for 20+ weeks in the preceding year (all within a 75-mile radius).
[2] Applies to employers with 15+ employees.
[3] & [4] Applies to NJ employers with 1+ employees
Tags: Family and Medical Leave Act • Employee Disability • ADA Compliance
