Here's a question submitted by the human resources coordinator at a big Ford dealership on the East Coast: "We have a shop technician who has been employed with our dealership for seven months. He has asked for a six-week medical leave for back surgery. Our leave policy is based on the Family and Medical Leave Act (FMLA) and only provides leaves to FMLA-eligible employees. Do we have to give him the time off?"

Car Dealer Insider's answer: "It depends." Assuming the technician has not worked for the dealership in the past, there is no obligation under the FMLA. But, the technician may be eligible for leave under the Americans with Disabilities Act (ADA), or under the dealership's own policies and procedures.

Under the FMLA, the technician can be eligible for leave if he has worked for the dealership for a total of 12 months, but those months do not have to be consecutive. So, if the employee has only worked for the store a total of seven months, he is not eligible.

Depending on the nature and severity of his back condition, however, he may be entitled to a leave of absence as an accommodation under the ADA. The ADA requires employers to reasonably accommodate a qualified individual with a disability, if doing so would enable the employee to perform the essential functions of the job and not cause an undue hardship for the dealership. The employee is legally disabled if he has a physical or mental impairment that substantially limits a major life activity.

What's a "major life activity?"

The term "major life activities" refers to those activities that are of a central importance to daily life. The ADA regulations define "major life activities" to include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. According to the regulations, the term "substantially limits" means that the person is unable to perform a major life activity that the average person in the general population can perform, or that the person is significantly restricted in the way she can perform a particular major life activity as compared to the average person. The dealership can require the employee to provide medical certification of her disability and need for accommodation.

A medical leave may be considered a reasonable accommodation under the ADA. In fact, many courts have determined that an employer may have to accommodate a disabled employee by allowing an unpaid leave in excess of any leave provided by the employer's policy.

Undue hardship on the business

So, if the technician meets the ADA's definition of disabled because he is substantially limited by his back condition, the dealership may have to grant him a leave of absence unless it can be shown that the leave will impose an undue hardship on the business. Unfortunately, back impairments are notoriously hard to classify, and they are still one of the most commonly cited impairments in ADA complaints to the Equal Employment Opportunity Commission. Therefore, look carefully at the nature and severity of the condition to determine if it does indeed rise to the level of a disability. If so, then determine if a leave would cause the dealership an undue hardship.

Alternatively, if it is determined that the technician is not disabled and therefore not entitled to an accommodation under the ADA, consider whether this employee is being treated consistently under the dealership's policies and procedures. If the store normally does not provide an extended leave to an employee not covered by the FMLA (as stated in the policy), then treat this employee in the same manner.

However, if the dealership has extended a leave of absence to an employee not covered by the FMLA in the past, then management needs to be able to show the business-related and job-related reasons for treating this employee differently, in order to prevent any inference of discrimination. An attorney can help determine the obligations under the policies, or the ADA, and whether termination is appropriate.   V