Multiple Requests for Extension of Medical Leave – Three Strikes and the Employee Is Not Out!

A recent Americans with Disabilities Act case is a reminder the employers must proceed carefully before denying repeated requests for extensions of medical leave by an employee. In the case, the employer had a “personal leave” policy that allowed for up to two additional 30-day leaves of absence after Family and Medical Leave Act leave was exhausted, subject to the employer’s approval based on individual circumstances. The policy also provided that “personal leave of absence may not be granted for more than 60 days in a rolling 12-month period.” The employee exhausted her FMLA leave in July 2009, after taking intermittent leave since November 2008. At that time, she requested a 30-day personal leave based on her doctor’s statement that she would be able to return to work one month later, in August 2009. This leave request was approved. The employee was unable to return to work in August 2009, and she submitted another note from her doctor saying that she would be able to return to work a month later, this time in September 2009. The employer granted that request also. When that leave expired, the employee presented a doctor’s note that said she would be able to return to work in February 2010, five months later. The employer terminated the employee at that point because she was unable to return to work.

The employee brought an ADA claim alleging her employer failed to accommodate her by refusing to grant her request for additional leave. The employer filed a motion for summary judgment on the grounds that the employee had requested “indefinite” leave, which was not a reasonable accommodation. As it turned out, the employee was not able to return to work in February 2010, the date contained in the last doctor’s note. To the contrary, as of the court’s decision in October of 2014 on the employer’s motion for summary judgment, the employee had been continuously unable to work since her termination, almost five years earlier. In addition, just prior to her termination, the employee’s claim for long-term disability benefits was approved, and a doctor who examined the employee in connection with her claim for social security disability benefits concluded that the employee would be unable to work for at least a year.

So the employer won the case, right? No! The court denied the employer’s motion for summary judgment, concluding that the employer could not rely on the “after-the-fact” evidence that the employee was never able to return to work to support its claim that the third leave request was unreasonable. In addition, while the court said it agreed with the employer that “indefinite” leave is never a reasonable accommodation, the court held that the leave the employee requested was not “indefinite” because the doctor had provided a specific date for the employee’s return to work. The court reached that conclusion even in the face of the fact that the doctor’s prior return to work dates had been wrong and, obviously, the third supposed return to work date also turned out to be very wrong. The court also held that the employer had to either show it would have been an undue hardship to provide further leave to the employee or that the return to work date given by the doctor was speculative, neither of which the employer had done before terminating the employee.

There are several lessons to be learned from this case. First, the word “indefinite” has a different meaning under the ADA than common usage — though it is unclear what that meaning is. Second, an employer cannot simply rely on a preset policy on the maximum length of leave when deciding whether it will grant a request for extension of a medical leave. Instead, the employer must individually assess the circumstances of each request for additional leave and be prepared to prove it would be an undue hardship to extend the leave before denying the additional leave. Third, an employer faced with repeated requests for extensions of medical leave may want to at least attempt to get the employee’s doctor to agree that the return to work date is speculative based on the employee’s history of not being able to return to work, including on the return-to-work dates previously identified. Fourth, if the employer is in the Ninth Circuit (which covers Alaska, California, Washington, and some other Western states), where this case was decided, it might consider moving to a state in a friendlier circuit… such as the Seventh Circuit!