By Jeff Jones
Special to the UCBJ
Employers frequently face the situation where an employee seeks a leave of absence due to a medical condition, but the employee has either exhausted or is not eligible for leave under the Family & Medical Leave Act (FMLA). Employers must determine when an additional unpaid leave of absence is required under the ADA (Americans with Disabilities Act) and how much leave is reasonable. The answer to this question can be very confusing, as the courts and the U.S. Equal Employment Opportunity Commission (EEOC) have conflicting positions on this issue.
The EEOC has consistently taken the position that leaves of absence can be a reasonable accommodation. A leave of absence means the employee is not working. However, a reasonable accommodation is generally thought to be a modification of the workingenvironment which enables a qualified individual with a disability to perform the essential functions of that position. Yet, according to the EEOC, leave qualifies as a reasonable accommodation “when it enables an employee to return to work following the period of leave.”
The EEOC explains its position in a resource document issued on May 9, 2016, titled “Employer-Provided Leave and the Americans with Disabilities Act.” This resource states that employees with disabilities must be provided with equal access to leave under an employer’s leave policy. However, the EEOC emphasizes that the ADA requires employers to provide unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer. The ADA requires this even if the employer’s policies do not offer leave as an employee benefit, the employee is not eligible for leave under the employer’s policies, or the employee has exhausted the leave the employer provides as a benefit. However, reasonable accommodation requirements do not require employer to provide paid leave beyond what is provided as part of an employer’s paid leave policy. The EEOC further opines that all requests for leave from employment because of a medical condition must be treated as a request for a reasonable accommodation under the ADA, and employers must engage in the interactive process.
The courts have issued conflicting opinions whether additional leaves of absence are required by the ADA, and to what extent. Many courts agree with the EEOC in holding that an additional leave of absence can be a reasonable accommodation under the ADA, and should be provided barring undue hardship. The decisions have generally specified two limits to the bounds of reasonableness for a leave of absence as an accommodation: 1) the employee must provide the employer with an estimated date when she can resume her essential duties because without an expected end date, an employer is unable to determine whether the accommodation is a reasonable one; and 2) a leave request must assure an employer that an employee can perform the essential functions of her position in the “near future.”
See Roberts v. Bd. of County Comm’rs., Kan., 691 F.3d 1211 (10thCir. 2012); Parker v. Columbia Pictures Indus., 204 F.3d 326 (2nd. Cir. 2000); Jarrell v. Hospital for Special Care, 626 F. App’x 308 (2ndCir. 2015); Silva v. City of Hidalgo, Tex., 575 F. App’s 419 (5thCir. 2014); Larson v. United Nat’l Foods West, Inc., 518 F. App’x 589 (9thCir. 2013); Santandreu v. Miami Dade Cty., 513 App’x 92 (11thCir. 2013); Hudson v. MCI Telecommunications Corp., 87 F.3d 1167, 1169 (10th Cir. 1996); Brannon v. Luco Mop Company, 521 F.3d 843, 849 (8th Cir. 2008).
Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at email@example.com.