Interactive Process Required After 2 year Leave of Absence

A recent case from Hawaii is a reminder that employers must engage in the interactive process to determine whether a reasonable accommodation might allow an employee to return to work, even after the employee has been out for more than 2 years and, even where the “interactive process would have proved fruitless.” In the case, the employer had a policy that permitted employees to take up to 24 months of personal leave. The employee took leave because he was suffering from depression and anxiety as a result of various events at work (which were the subject of other claims). Before the end of the 24 months, the employee requested additional leave as a reasonable accommodation. The employer permitted the employee to extend his leave for a few more months, and then terminated the employee.

The court found that because the employer did not engage in the interactive process to try to determine if there was some reasonable accommodation which would allow the employee to return to work, and because there was no evidence to establish that no such reasonable accommodation was available, the employer was not entitled to summary judgment.

The case is Chan v. Wells Fargo Advisors, LLC, U.S.D.C. Hawaii, Case No.: 14-00344 SOM/KSC.

Bottom line: Even if an employee on leave related to a disability does not appear to be able to return to work when the leave ends, and even where an employer suspects that the employee will never be able to return to their job, employers must entertain requests for accommodations (including for additional leave) and make an affirmative effort to engage in the interactive process, unless there is clear evidence that no reasonable accommodation would allow the employee to perform their job.

EEOC guidelines on reasonable accommodation are here: http://www.eeoc.gov/policy/docs/accommodation.html#other

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