Dear Littler: One of our key employees was injured in a serious car accident. She qualified for, and took, a full 12 weeks of leave under the Family and Medical Leave Act (FMLA) to recover. She was supposed to return to work on Monday but now says she’ll need to take at least another month off for physical therapy as a “reasonable accommodation.” Must we grant her this leave? Since when is NOT working considered a reasonable accommodation?
—Miffed in Milwaukee
Dear Miffed in Milwaukee,
While it may be small consolation, your confusion about how to handle this delicate (but not uncommon) situation is understandable. Courts, the Equal Employment Opportunity Commission (EEOC), and employers continue to debate whether—and how—extended leave should constitute a reasonable accommodation under the Americans with Disabilities Act (ADA).
Your question raises a host of interwoven legal and practical issues. At the outset, and as most employers know, the ADA and related state antidiscrimination laws prohibit discrimination against individuals with disabilities, i.e., applicants or employees with physical or mental impairments that substantially limit1 one or more major life activities.2 Congress has explicitly stated that the definition of “disability” under the ADA should be interpreted widely, to expand coverage for workers with disabilities.3 Although you did not mention the details of your employee’s medical condition, we'll assume that she has a disability within the meaning of the ADA.4 Generally, the ADA requires employers to provide reasonable accommodations to qualified applicants and employees with disabilities.5
Reasonable accommodations can take many forms, depending on the circumstances and an individual’s needs. Accommodations may include making workplace facilities accessible, changing tests or training materials, providing interpreters or assistive equipment, or modifying work schedules.6 As described by the EEOC, the underlying “purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work.”7 Thus, for example, it may be a reasonable accommodation to provide a stool to a cashier who, due to a medical disability, grows fatigued if required to stand for her shift, but who can perform her job effectively if seated.
Leave as a Reasonable Accommodation
A leave of absence also may constitute a reasonable accommodation under the ADA, even though—as you point out—a leave means that the employee is not working. As explained by the EEOC, leave qualifies as a reasonable accommodation “when it enables an employee to return to work following the period of leave.” Employees with disabilities may need leave for a variety of reasons, including physical therapy, recuperation from an illness or the manifestation of a disability, obtaining repairs on wheelchairs or other assistive devices, or training a service animal.8 As with the FMLA, leave may even be intermittent, depending on the circumstances.
According to the EEOC (and most federal courts), the ADA mandates that employers “consider providing unpaid leave to an employee with a disability . . . if the employee requires it.”9 An employer covered by the ADA must seriously explore leave requests even if: (1) the employer does not provide leave benefits; (2) the employee is not eligible for benefits under any company leave policy; or (3) the employee already exhausted available leaves of absence, including under a company policy or the FMLA. According to the EEOC, leave must be granted unless another reasonable accommodation option would be effective (e.g., would enable the employee to perform his/her essential job functions) or if the leave would cause the employer undue hardship.
Undue Hardship
Under the ADA, “undue hardship” refers to an action that requires “significant difficulty or expense.” Whether an accommodation is an undue hardship is a very fact-specific question and involves consideration of several criteria, such as: (1) the nature and cost of that accommodation; (2) the overall financial resources of the facility and impact on expenses and resources; (3) the overall resources of the employer; (4) the nature of the employer’s operations, including the composition, structure and functions of the workplace; and (5) the impact of the accommodation on operations, including any impact on the ability of other employees to perform their work.10
When assessing whether a leave of absence might rise to the level of an undue hardship, employers should closely analyze factors including the length of leave required and, if the leave would be intermittent, the frequency and predictability of each separate absence episode. Employers should contemplate whether any flexibility might alleviate potential hardship, such as whether the employee could receive treatment on a particular day of the week preferable for the employer. Employers also should consider the material impact of the leave on operations, coworkers’ productivity, and customer service; in turn, this assessment likely will depend on the size of the employer and its ability to maintain productivity despite an employee’s absence.11
But What About Extended or Indefinite Leave?
With that background in mind, let’s home in on your dilemma: how may employers handle requests for leave that are lengthy, or even open-ended?
While an extended medical leave may be a reasonable accommodation, an employer generally does not have to provide a leave of indefinite duration. The EEOC has stated that “indefinite leave—meaning that an employee cannot say whether or when she will be able to return to work at all—will constitute an undue burden.” Similarly, numerous federal appellate courts have held that an employee is not entitled to leave as a reasonable accommodation if the duration is unknown.12
Courts also have rejected requests for leave that have a specific end date but are deemed excessive. The rationale for some of these holdings is that “[a] leave request must assure an employer than an employee can perform the essential functions of her position in the near future.” For example, some courts have concluded that a six-month leave of absence is simply too long to be a reasonable accommodation.13
A few courts have described these limitations in another way—including the Seventh Circuit Court of Appeals, which covers your hometown of Milwaukee.14 These courts have indicated that individuals seeking excessively long or undetermined leaves need not be accommodated because they are not “otherwise qualified” for their jobs under the ADA. Remember that the ADA protects individuals with disabilities who are otherwise qualified, with or without accommodation, to perform the essential functions of their jobs. But as some courts have noted, “[i]t perhaps goes without saying that an employee who isn’t capable of working...
