Extended leave as ADA accommodation called into question
Katie Loehrke, PRH, SHRM-CP
Employment Law & Regulatory Alert
The tides may be turning for what was once a firmly established tenet of the Americans with Disabilities Act (ADA). The Seventh Circuit Court of Appeals recently went against the Equal Employment Opportunity Commission’s (EEOC) longtime stance by indicating that an employer was within its rights to refuse to consider leave as a reasonable accommodation.
In this case, an employee used all twelve weeks of job-protected leave provided by the Family and Medical Leave Act (FMLA). When he still could not return to work, he requested that his employer grant two or three additional months of leave as a reasonable accommodation for his disability.
But leave must be considered!
The EEOC has consistently held that employers must consider additional leave under the ADA after FMLA leave has been exhausted.
It has been clear that employers need not accommodate employees who cannot specify an anticipated date of return (indefinite leave is not a reasonable accommodation). However, when employees can cite a definitive amount of time after which they would likely be able to return, employers have been required to consider whether they could provide the accommodation.
Employers that decline such a request must either find another way to accommodate the employee’s disability, or show that the requested accommodation would pose undue hardship on the employer.
So that’s that, right?
Given this widely understood guidance, it would seem that the employer in this case should have considered the request for additional leave. It did no such thing, however. The employer not only refused the employee’s request, but terminated his employment (though, to be fair, it did invite the individual to reapply with the company when he was able to work).
The employer did not establish that providing the leave would create undue hardship before denying the request.
Requested leave ‘didn’t allow the employee to work’
While it might seem that this case was headed toward a hefty judgment in favor of the employee, the Seventh Circuit Court of Appeals (which covers Illinois, Indiana, and Wisconsin) sided with the employer. The court noted that the purpose of the ADA is to allow an employee to perform the essential functions of his job, and a long-term leave of absence doesn’t accomplish that purpose.
According to the Seventh Circuit: “If, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute — in effect, an open-ended extension of the FMLA. That’s an untenable interpretation of the term “reasonable accommodation.”
The court did note that a brief period of leave — lasting days or weeks — could still be a reasonable accommodation in some circumstances, giving the example of someone with arthritis or lupus who might need intermittent leave during flare-ups of those conditions. But, at least in the Seventh Circuit, leave spanning multiple months is
not a reasonable accommodation.
In other circuits
The Seventh Circuit’s take is currently the most employer-friendly ruling with regard to the amount of leave that could be considered a reasonable accommodation. But the Sixth and Tenth Circuits have also weighed in on limits, indicating that a leave request for six months or longer will not generally be reasonable.
Beyond considering case law in their specific regions, employers must remember that a discussion shouldn’t end just because an employee’s leave request is unreasonable or would pose undue hardship.
The interactive process under the ADA requires that employers consider whether
any adjustments are available to allow the employee to perform the essential functions of his or her job.
Key to remember: A recent Seventh Circuit ruling conflicts with EEOC guidance, indicating that employers are not required to consider leave lasting several months as a reasonable accommodation under the ADA.
This article was featured in the newsletter. Employment Law & Regulatory Alert
Employment Law & Regulatory Alert newsletter explains why you need to care, what you need to do, and how your business could be affected by HR industry news and hot topics. to trial this newsletter for free or view our Click Here of HR compliance publications. full library