Managing Never-Ending Leaves Under the ADA

September 5, 2014

Courts have uniformly found that leave can be a reasonable accommodation under the Americans with Disabilities Act (ADA). So even if an employee isn’t eligible for leave under the Family and Medical Leave Act (FMLA) or has expended all of his FMLA leave, he still may be eligible for leave as a reasonable accommodation if he’s covered under the ADA.

By the same token, courts have generally found that an indefinite leave isn’t a reasonable accommodation. The dif­ficulty is that leaves without a specific end date aren’t necessarily indefinite. As a result, an employer can find itself between a rock and a hard place when an employee goes out on and continually extends ADA leave.

Reasonable Accommodation

An employee requesting a reason­able accommodation under the ADA need only show that the requested ac­commodation is generally reasonable. Then, the employer must either grant the request or show special (typically case-specific) circumstances that dem­onstrate undue hardship.

Leave has been explicitly identified as a reasonable accommodation under the ADA in nearly every federal court. In seeking leave as a reasonable accom­modation, the employee need not show that the leave is certain or even likely to be successful to prove that it’s a reason­able accommodation. He only has to show that it would plausibly enable him to return to work and perform his job.

Amount of Leave

The ADA doesn’t identify any amount of leave time that would auto­matically be deemed an undue hardship. Some courts have found that one year is not too long, and employers shouldn’t adopt specific policies for when to cut off leave. The analysis is difficult, fact-inten­sive, and case-specific, ill-served by ex­plicit rules or stereotypes. The ADA al­lows an indeterminate amount of leave as a reasonable accommodation, barring undue hardship.

In certain situations, an employee may be able to provide only an approxi­mate date of return. Treatment and recu­peration don’t always permit exact time­tables. Thus, employers cannot claim undue hardship solely because an employee can provide only an approximate date of return. The Equal Employment Oppor­tunity Commission (EEOC) uses an ex­ample of an employee who, while origi­nally scheduled for an eight-week leave to undergo and recover from surgery, develops complications that require an additional 10 to 14 weeks of leave. That additional time may be deemed a rea­sonable accommodation unless it would cause an undue hardship.

Courts have also found that approx­imate return-to-work dates do not make the leave request indefinite. One court rejected an em­ployer’s contention that it would be an undue hardship to give an employee an additional two to four weeks of medical leave on the grounds that the approximate re­turn-to-work date would create uncertainty. The court pointed out that the employer hadn’t made any inquiry about what accommodations might be needed and didn’t make any efforts to independently assess the em­ployee’s prognosis and the reasonableness of her leave request. The court also highlighted evidence that the job had been vacant for many months before the employee had been hired, the company took almost six months to fill her position after it discharged her, and subordinates handled the job in the interim.

Another court held that when an employee already on a medical leave asked for more time to schedule an appointment with a specialist and said it might take a couple of weeks, the request wasn’t for an indefinite leave. If the employee’s return date changes, you may seek medical documentation to determine whether you can continue providing leave without undue hardship or whether the accommodation has become a request for indefinite leave.

Indefinite Leave

Generally speaking, you have no obligation to pro­vide an indefinite leave. The EEOC has stated that al­though employers may have to grant extended medical leave as a reasonable accommodation, you have no obli­gation to provide leave of indefinite duration. Indefinite leave, like frequent and unpredictable requests for leave, can impose an undue hardship on an employer’s opera­tions. Indefinite leave is different from leave requests that give an approximate date of return (e.g., a doctor’s note says the employee is expected to return around the beginning of March) or that give a time period for re­turn (e.g., a doctor’s note says the employee will return sometime between March 1 and April 1).

In another case, the employer argued that because the employee’s doctor couldn’t give absolute assurances that she would be fit to return to work on the stated re­turn date, the request was inherently for an indefinite leave and was therefore unreasonable. The court re­jected that argument, saying there shouldn’t be a strict rule that an unpaid leave of indefinite duration (or for a lengthy period, such as one year) could never consti­tute a reasonable accommodation under the ADA. The court observed that an employer may be hard-pressed to explain why it would be an undue hardship to allow an employee an indefinite leave if she is working in a position where she has numerous peers and there’s ex­tremely high turnover or her job has little specialization.

The U.S. 7th Circuit Court of Appeals (whose rul­ings apply to Wisconsin employers) has generally looked unfavorably on indefinite leaves. It has found that the ADA doesn’t require an employer to accommodate an employee who suffers a prolonged illness by allowing him an indefinite leave of absence. The court has stated that a request for open-ended leave is equivalent to the employee’s concession that she cannot perform the es­sential functions of her job.

In one 7th Circuit case, a teacher was absent for more than 18 months. The court upheld the employer’s refusal to accommodate the teacher by allowing him an indefinite leave of absence. The court found that the undisputed facts showed that the teacher was unable to perform an essential function—regular attendance, and he failed to meet his burden of establishing that he was a “qualified individual with a disability” at the time of his termination. Thus, the court held that the ADA doesn’t require an employer to accommodate an employee who suffers a prolonged illness by allowing him an indefinite leave of absence.

Undue Hardship

Even if it isn’t indefinite, leave may pose an undue hardship. The ADA requires an interactive, fact-specific process to determine whether an accommodation is rea­sonable or would impose an undue hardship. The fol­lowing factors must be considered:

  • The nature and net cost of the accommodation needed, taking into consideration the availability of tax credits and deductions or outside funding;
  • The overall financial resources of the facility or facil­ities involved in the provision of the reasonable ac­commodation, the number of persons employed at the facility, and the effect on expenses and resources;
  • The overall financial resources of the employer and the overall size of the business (i.e., the number of its employees, and the number, type, and location of its facilities);
  • The type of operation or operations of the employer, including the composition, structure, and functions of its workforce, and the geographic separateness and administrative or fiscal relationship of the af­fected facility or facilities to the company as a whole; and
  • The impact of the accommodation on the operation of the facility, including the impact on the ability of other employees to perform their duties and on the facility’s ability to conduct business.

Bottom Line

Administering ADA leave can be the most frustrat­ing and challenging task faced by an HR professional. Such leaves are becoming more and more common as employees face serious health problems that are difficult to resolve in short order.

There’s no perfect solution to resolving the problems an ADA leave may create, but assuming that a leave that appears to be indefinite will in fact be considered in­definite by a court may create serious liability. For that reason, leaves that might fall into the indefinite category must be approached with extreme caution. It’s often prudent to allow events to begin to run their course before taking any adverse employment action (such as termination).

This article was featured in the August 2014 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Troy Thompson and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

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For more information about "Managing Never-Ending Leaves Under the ADA," contact Saul C. Glazer at sglazer@axley.com or 608.260.2473.