As If Leave Laws Aren’t Complicated Enough – Don’t Forget That Leave Can Be a Reasonable Accommodation

24 July 2017 Labor & Employment Law Perspectives Blog
Authors: Felicia S. O'Connor

The myriad of leave laws and requirements often make employee leave requests an area of confusion, concern and risk for employers. If an employee has a medical condition and must take leave from their job, there may be several laws, benefits and policies that cover the situation.  Many employers are familiar with the Family and Medical Leave Act (FMLA) process as well as their own company’s policies for PTO, sick time and short or long term disability. But, that’s not the end of the leave analysis.  One thing to keep in mind while navigating the complicated leave process is that leave can also be a form of reasonable accommodation under the Americans with Disabilities Act (ADA) and similar state or local laws.  If an employee has exhausted other leave options, but still cannot return to work, employers should explore reasonable accommodations for the employee, including leave as a possible accommodation.

Under the ADA, employers are obligated to provide reasonable accommodations to employees who are disabled, but can perform the essential functions of their job with an accommodation, unless doing so would pose an undue hardship on the employer. As most employers are aware, accommodations can include a wide range of things including changing desk heights, adjusting schedules, providing extra time for tasks or as we recently explored, permitting some employees to work from home under certain circumstances. But, many courts have found that leave can be a reasonable accommodation.  This can often lead to more questions than answers.  For example, how long of a leave is reasonable?  Is leave a reasonable accommodation for every position?  At what time can the employer compel the person to return to work or face termination?

A recent case in the United Stated Court of Appeals for the First Circuit (covering Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) helps to show the boundaries of leave as an accommodation. In that case, an employee requested twelve additional months of leave, after already taking approximately six months leave during which she received short term disability benefits.

Over the course of her six-month leave, the employee’s short term disability benefits were extended multiple times and the employee was described as both “mildly ill” and “severely ill” by her doctor at various times. Additionally, the employer tried to compel the employee to return from leave on more than one occasion during the initial six months based on designated dates that her short term disability benefits were scheduled to run out.  Following the initial six month leave, the employee requested an additional twelve months of leave for her depression and anxiety.  The employer required her to return to work, and when she did not, sent her a notice of termination.  After the employee filed suit, the court ultimately held that the employee’s request for an additional twelve months of leave was not an objectively reasonable accommodation because it was too long.  The court cited other court cases holding that even a six month leave of absence could be too long to be considered reasonable.

While this case helps define the perimeters of leave as a reasonable accommodation, it should not signal to employers that all leave requests are unreasonable as accommodations. When facing the difficult situation of an employee who may have a disability and is requesting additional leave after exhausting the usual leave benefits, an employer should engage the employee in an interactive discussion regarding his or her restrictions and concerns.  Perhaps the employee could, in fact, return to work if other accommodations were made.  And, even if the employee cannot work at that time, consider whether their additional leave request can be reasonably accommodated before rejecting it due to exhaustion of other leave.  An additional short leave can be a reasonable accommodation under the ADA and may save the employer from the cost and time of hiring and training a new employee.

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