Employee requests for leave as a reasonable accommodation
Few issues confound and frustrate business owners, managers and human resources professionals more than employee requests for leave as a reasonable accommodation. While the Americans with Disabilities Act (ADA) does not include “leave” among its non-exhaustive list of suggested reasonable accommodations, the Equal Employment Opportunity Commission (EEOC) has said that the purpose of reasonable accommodation is to require employers to change their normal policies and practices to enable employees with disabilities to work. Courts and the EEOC have recognized that leave as a reasonable accommodation is consistent with this purpose when it enables an employee to return to work following the period of leave. Even so, courts, the EEOC and employers continue to debate whether, and to what extent, extended leave should constitute an ADA reasonable accommodation.
Where a request for disability-related leave falls under existing employer policies, an employer should provide disabled employees access to those policies on equal terms as similarly situated, non-disabled employees. However, that is not the end of an employer’s obligation under the ADA. In some cases, an employer must engage in an interactive process to explore providing unpaid leave to an employee with a disability as a reasonable accommodation. That is the case even when the employee would not otherwise qualify for leave under any employer policy or the Family and Medical Leave Act (FMLA) and/or the employee has exhausted such leave.
Courts and the EEOC generally agree that indefinite leave – a situation in which an employee cannot say when or even if she will be able to return to work – is not a reasonable accommodation because it constitutes an undue burden on the employer. In recent decisions, however, two federal appellate courts have gone a step farther, reaching conclusions that could help to further clarify the leave-as-accommodation landscape for employers. The Seventh Circuit Court of Appeals1 (covering Indiana, Illinois and Wisconsin) and the First Circuit Court of Appeals2 (covering Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) have taken the position that an employee who requires a leave of absence for even a few months beyond the expiration of FMLA leave is not capable of performing a job’s essential functions, such that the individual is not protected by the ADA, and the employer is within its legal rights to deny the requested leave.
So far the Supreme Court has declined to jump in on this debate, and it remains unclear how much impact these decisions will have on employers in Pennsylvania, New Jersey and Delaware. It appears, however, that the pendulum is swinging on this issue, albeit slowly, in favor of employers. As with any employee accommodation request, employers should consider the unique facts and circumstances of any employee leave as accommodation request, including any potential burdens on the business.
Employers should consult experienced labor and employment counsel when in doubt about the appropriate course of action. For MEA members, a Member Legal Services attorney is available to provide this assistance. In addition, this issue and more will be covered during MEA’s upcoming compliance webinar When ADA, FMLA and Workers’ Compensation Meet, scheduled for August 14, 2018 from 12:00 pm to 1:30 pm.
About the Author
Amy McAndrew is MEA’s Director of Member Legal Services and has over twenty years of experience as a labor and employment attorney.
1Severson v. Heartland Woodcraft, Inc. (Case No. 15-3754) and Golden v. Indianapolis Housing Agency (Case No. 17-1359).
2Delgado-Echevarría v. AstraZeneca (Case No. 15-2232).