How Much Leave is Too Much? Determining
When an Employer May Deny or Stop an
Extended Medical Leave of Absence
By H. Carlton Hilson December 2018
Employers continue to face challenges managing employee requests for additional or extended
medical leaves of absence for employees who are not eligible for or have exhausted FMLA leave.
The Equal Employment Opportunity Commission (“EEOC”) and many federal courts have found that
unpaid leave may be a form of reasonable accommodation under the Americans with Disabilities
Act (“ADA”) even when FMLA leave is not available if the employee will likely be able to perform the
essential functions of his or her position upon return. Because employee leaves and accommodation
requests are fact specific and analyzed on a case-by-case basis, courts have been reluctant to place
definitive limits on the length of employee leaves as reasonable accommodations. As a result,
employers are often uncertain on whether an additional or extended leave of absence request must
be granted and when they can finally say “enough is enough.”
Fortunately, the courts have recently provided some helpful guidance to employers in this area. For
example, the Eleventh Circuit Court of Appeals recently held in Billups v. Emerald Coast Utilities
Authorities that an employee is not entitled to leave under the ADA unless it would permit the
employee to return “in the present or in the immediate future.” 2017 WL 4857430 (11th Cir. Oct.
26, 2017). The plaintiff in Billups sustained a shoulder injury and began a continuous FMLA leave.
About halfway through the employee’s FMLA leave, his doctors determined that surgery would be
required and that he would not be able to return for approximately six months. Following
discussions with the employer in the months to follow and the employee’s failure to provide a
definitive return-to-work date by the employer’s deadline, the employer terminated the employee’s
employment.
In the resulting ADA lawsuit, the employee argued that his employer should have accommodated
him “by offering a limited period of unpaid leave while he recovered from surgery.” The Eleventh
Circuit, however, affirmed dismissal of the suit and held that the employee was not a qualified
individual with a disability under the ADA because he indisputably could not work at the time of his
termination, failed to meet the employer’s request to provide a certain return-to-work date, and
failed to show that additional leave would have enabled him to perform his job’s essential functions
“presently or in the immediate future.”
The Seventh Circuit Court of Appeals took a similar approach in Severson v. Heartland Woodcraft,
Inc., and held that a multi-month, continuous leave of absence was not an ADA reasonable
