Managing an employee on leave for a disability under the Americans with Disabilities Act (ADA)  can be challenging.  It becomes even more frustrating when the employee fails to respond to an employer’s request for information about the employee’s condition and status.  But employers are not entirely without recourse.  Courts have consistently found that employees who fail to respond to their employers’ requests for information are not protected by the ADA.

For example, in the recent case of Alston v. Microsoft Corp., a federal District Court in New York rejected an employee’s claim that his employer failed to accommodate him by providing an indefinite leave.  In that case, an employee received several extended leaves of absence, in addition to other workplace accomodations.  He applied for, but was denied long term disability benefits.  At that time, the employer sent the employee a letter, informing him that he needed to return to work or to submit to an independent medical evaluation (IME).  Receiving no response to its letter, the employer then sent an e-mail and left a message at his home.  When the employee still failed to respond, he was terminated.  He filed suit, claiming a violation of the ADA.

The Court found that, “Requiring an employer to keep an employee on an extended leave of absence with no indication of whether or when the employee will return constitutes an undue hardship under the facts of this case.”  The Court further rejected as “nonsensical” the employee’s contention that he should have been permitted to take an IME before being terminated, despite his failure to respond.  As the Court noted, in the letter to the employee, the employer directed him to advise them if he intended to take an IME.  As the Court logically stated, the employer “is not required to infer – from plaintiff’s total silence – that [plaintiff] had intentions to either return to work or to undertake the medical examinations.”  Thus, the Court appropriately found, “Plaintiff’s failure to act is not a failure to accommodate on the part” of the employer.

Bottom line – if an employer requests information about an employee’s return to work status, the employee has an obligation to respond.  So if an employer takes (and documents!) reasonable steps to determine whether an employee can return to work, and the employee doesn’t respond, the employer can justifiably terminate the employee.