Limits to Leave as a Reasonable Accommodation under the ADA

By Heather F. Crowe

Employers know (or should know) that under the Americans with Disabilities Act (“ADA”) a qualified employee with a disability is entitled to a reasonable accommodation, as long as that accommodation does not cause an undue hardship. Because the Rehabilitation Act and the ADA standards are identical, this applies to both public and private employers. The Federal Regulations define a reasonable accommodation in part as “modifications or adjustments to the work environment, to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position…” 29 U.S.C. §1630.2(0)(1)(ii). The regulations list several examples including changes to the facilities used by the employee; job restructuring, such as a modified job schedule; reassignment to a vacant position; acquisition of equipment or devices; the provision of interpreters; and others. The standard is flexible and factually dependent on the situation. An accommodation is not reasonable, however, if it creates an undue hardship on the employer. An undue hardship means that it would result in significant difficulty or expense to the employer.

Although employee leave is not included in the regulations, it is often a go-to accommodation request by employees. This often occurs when an employee is not entitled to FMLA leave for whatever reason (such as not being employed for one year), or when the employee has exhausted his or her FMLA leave entitlement. At this point, the issue becomes tricky. Some employees and their medical providers are able to determine exactly how much more leave they will need and provide a return to work date. Some cannot.

One of the more difficult questions for an employer then becomes, how much leave do I have to provide? A month? Six months? A year? What is reasonable? This question has plagued employers for years, while employees are seemingly being provided with longer and more frequent leave periods. While the answer will necessarily vary depending on the facts, recently, courts have begun to provide more guidance to employers.

For most jobs, it is a rare circumstance that regular attendance is not an essential function of the position. In other words (work-from-home scenarios aside), an employee cannot perform the duties of her job if she cannot come to work. That means she is not a qualified individual within the meaning of the ADA, and therefore not entitled to a reasonable accommodation. Depending on the job and the duration of leave requested, however, an employer may be able to reasonably accommodate an employee by providing an additional leave of absence or otherwise modifying the attendance policy. While a limited period of leave could enable an employee to heal or otherwise recover from a medical condition sufficiently to return to work, the employee and/or her medical provider must be able to determine when that might be. An employer simply cannot be expected to hold open a position with no end in sight. Thus, the courts have been clear that leave requests of an indefinite duration are not reasonable.

One key factor in the analysis is that it is the employee’s burden to show that s/he was qualified under the ADA. The purpose of a reasonable accommodation is to enable an employee to perform the essential functions of his job. If s/he is requesting extended leave, the purpose of that leave should ultimately be so that s/he can return and perform the job. Perhaps that means time to recover after surgery, or to complete medical treatment. When an employee seeks open-ended leave, however, he is not demonstrating that a particular period of leave will enable him to perform his job duties; thus, it is not a reasonable accommodation. A recent Fifth Circuit case held that an employee who sought extended leave that would enable him to reach retirement eligibility was not a reasonable accommodation under the ADA because it would never enable him to return to work. Moss v. Harris County Constable Precinct One, 851 F.3d 413, 418 (5th Circuit 2017).

These basic rules beg another series of questions for employers. What about those specific long-term requests? How long is reasonable? When an employee indicates that s/he needs several months of leave, how far must the employer go? While the short answer is—unsurprisingly—“it depends,” the courts have begun to provide some parameters that offer relief to employers who must consider whether to provide extended leave. They have done this in two particular ways.

Separating the FMLA and the ADA into separate inquiries.

While it is obvious that the Family and Medical Leave Act (“FMLA”) and the ADA are separate statutory schemes, confusion for employers arises when an employee needs FMLA. An FMLA leave request often—and should—alert the employer that the ADA may be implicated as well. But as courts are frequently pointing out, the FMLA and the ADA are distinct statutes with different requirements. For example, whether an employee is entitled to position restoration following FMLA leave and whether the employee is entitled to an accommodation under the ADA are two wholly separate inquiries, despite the factual overlap that often occurs. Moreover, there is no “reasonable accommodation” requirement under the FMLA. These distinctions matter for a number of reasons, including the analysis of the employer’s obligations under each statute, as well as the varying standards of proof and damages in the unfortunate event of a lawsuit. Separating the employer’s obligations and applying each statutory standard separately can help an employer more precisely determine its responsibilities. As the Seventh Circuit recently observed, “[l]ong-term medical leave is the domain of the FMLA.” Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017).

“The ADA is an anti-discrimination statute, not a medical-leave entitlement.”

An employee may ask why short-term leave might be a reasonable accommodation, but extended leave is not? For years, lawsuits have explored this question, asking whether extended leave is a reasonable accommodation. That is only part of the analysis, however. As the Severson court explained, “Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.” Id. at 481. The court went on to explain that “the inability to work for a multi-month period removes a person from the class protected by the ADA.” Thus, not only is an extended leave not likely to be a reasonable accommodation, the employee is probably no longer considered a qualified individual.

In Severson, the Seventh Circuit explored the denial of long term leave. Severson suffered from a back condition that did not always hinder his ability to work, but caused occasional flare-ups that made it difficult or impossible to work. After wrenching his back at home, he was approved for FMLA leave for a series of steroid injection treatments. Around the time his 12-week FMLA leave would have been exhausted, his doctor recommended surgery, with a two-month recovery period. Severson requested an extension of his medical leave. The employer indicated that he had exhausted his FMLA entitlement and that if he could not return, his employment would end, although he was welcome to re-apply once he was cleared to work. Severson at 481. Severson had the surgery and a little over three months later, was cleared to return to work.

Instead of re-applying, Severson sued his employer, alleging that by denying him extended medical leave, his employer failed to offer a reasonable accommodation in violation of the ADA. The court, however, dismissed his claim, holding that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement.” Severson at 479. While acknowledging that intermittent or short term leave might enable a person to work or return work in some circumstances, and analogizing such a situation to a part-time or modified schedule, the court explained that “a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job.” Id. at 481. Rather, such a leave simply removed the employee from the class of protected individuals. Id. The same court affirmed that holding in Golden v. Indianapolis Housing Agency, 2017 WL 4675734 (7th Cir. October 17, 2017), when it held that six months leave for cancer treatment removed an employee from the protected class under the ADA.

These holdings do not, of course, give employers carte blanche to deny all leave requests that are longer than FMLA entitlement. Rather, when an employee provides an end date, the employer must determine if the length is reasonable. What is “short” versus “long” term leave is debatable, and requires an analysis of the facts specific to the situation. In deciding the Severson case, however, the Seventh Circuit provided some helpful guidance for employers in determining what a reasonable accommodation is in terms of leave requests and has made clear that a “multi-month” leave of absence is not generally a reasonable accommodation.

Heather F. Crowe, Attorney
The Kullman Firm