Is granting an employee additional leave a reasonable accommodation under the Americans with Disabilities Act (ADA)? Employers have found a plethora of guidance from the courts on this issue but still suffer from a dearth of instruction from the Equal Employment Opportunity Commission (EEOC).
Under the ADA, employers have an obligation to reasonably accommodate a qualified individual with a disability. A common situation arises when an employee has taken leave under employer policies or the Family and Medical Leave Act (FMLA) and their allotted leave is exhausted, but they are not ready and/or able to return to work. Their need for additional leave runs up against the employer’s maximum leave or no-fault termination and “100 percent healed” policies. Employers must balance their need for finality against their obligations under the ADA.
As pointed out in early 2013, the EEOC has promised guidance on this issue, but that promise has remained unfulfilled. Federal courts have stepped into the breach, establishing rules of thumb for employers and employees. In the process, the EEOC has been preempted and presumably marginalized. Several recent cases illustrate that progress.
In one case, the 6th Circuit upheld the termination of an employee pursuant to a “Maximum Medical Leave of Absence Termination Policy.” The policy provided that an employee who is unable to perform the essential functions of his position, with or without accommodation, or another position the employer may offer, would be automatically terminated after six months of leave. An employee may request an extension of leave, before the termination would be effective, along with medical documentation demonstrating the employee would be able to return to work on a date certain within a reasonable time after termination would otherwise take effect. The court upheld the employee’s termination because he did not submit his extension request until three days after his leave had expired.
In a second case, a court upheld the termination of a nurse who, upon the expiration of her FMLA leave, was unable to perform the essential functions of their job. The court found the employer was not obligated to accommodate the nurse’s request for an additional six weeks of leave. The court found the additional leave would present an undue hardship. The employer had already spent $8,000 in additional staffing cost to utilize a temporary overnight nurse during the nurse’s FMLA leave. Moreover, modifications and inconsistency in care could create an unacceptable level of care, as well as fatigue to other nurses. Therefore, the employer was not obligated to grant additional leave as an accommodation.
In a third case, an anesthesiologist had taken a four-week leave to allow her injury to heal. After the four weeks, she was still unable to perform the physical demands of her job and requested a four-month leave of absence or, alternatively, for an indefinite leave of absence. She offered no evidence that one more leave of absence would restore her ability to work as an anesthesiologist. The court relied upon what is by now a well-established precedent: The ADA does not require an employer to accommodate an employee who suffers a prolonged illness by allowing him an indefinite leave of absence. Leave requests of indefinite duration or even in excess of one year are typically found to be unreasonable as a matter of law. The court explained that where an employer has already provided a substantial leave, an additional leave period of substantial duration, with no clear prospects for recovery, and courts recognize that such additional leave is an objectively unreasonable accommodation.
Of course, the EEOC has not fully acquiesced to this now-growing body of law interpreting the ADA. It continues to argue that no-fault termination policies that do not allow for any leave extensions are unlawful under the ADA and that employers who have denied short-term leave extensions have violated the ADA. However, it has still not staked out a formal position on how much additional leave is a reasonable accommodation.
While the EEOC has delayed providing instruction, courts have filled the vacuum and provided employers with substantial guidance. Although ADA cases are fact specific and it is difficult to find clear standards for evaluating employee accommodation requests, certain rules of thumb may be gleaned from these decisions. Specifically, employers generally do not have to grant indefinite leaves as an accommodation under the ADA. Even shorter leaves, when requested as an accommodation, will require scrutiny. Employers may not simply reflexively deny those requests. Just how much leave they will have to grant will continue to have to be determined on a case-by-case basis, with input from the requesting employee.