Courts Continue to Grapple with Leave as a Reasonable Accommodation Under ADA
When is it safe to terminate an employee who has exhausted (or is ineligible for) Family Medical Leave Act (FMLA) leave, but who is unable to return to work? This question continues to confound employers, and has been the subject of numerous court opinions, many of which answer the question in different and seemingly inconsistent ways.
The Americans with Disabilities Act (ADA) does not include “leave” among the non-exclusive list of reasonable accommodations that may be required under federal law. However, many courts have found that a leave of absence may be a reasonable accommodation under the ADA, at least where an employee’s medical provider has indicated that leave will enable the employee to return to work. A body of case law has developed over recent years, analyzing employees’ leave requests in the context of the facts presented, and determining which requests are “reasonable” (and therefore potentially required under the ADA), or “unreasonable” (and therefore not required as a matter of law). Last year (2017) saw two such cases from federal Courts of Appeal, including a May 2017 decision from the First Circuit Court of Appeals and a September 2017 decision from the Seventh Circuit Court of Appeals. It should be noted that the US Supreme Court has yet to address this issue, despite the conflicting opinions among the circuit courts.
7th Circuit Holds Long-Term Leave is Not a Reasonable Accommodation
In Severson v. Heartland Woodcraft, Inc., (7th Cir. 2017) the plaintiff took 12 weeks of FMLA leave for back-related issues. Before he exhausted his FMLA, the plaintiff requested an additional two months of leave, to undergo and recover from back surgery, which was scheduled to occur shortly after the conclusion of his FMLA-protected leave. The employer denied the request for a leave extension, informed the plaintiff that his employment with the company would end on the date that his FMLA expired, and invited him to reapply when he recovered from surgery and was medically cleared to work.
The employee sued, arguing—among other things—that his employer’s refusal to grant him additional leave amounted to a failure to provide reasonable accommodation. The court disagreed. Reasoning that a “reasonable accommodation” under the ADA is one that makes it possible for the employee to perform the essential functions of his job, the 7th Circuit Court of Appeals concluded that a long-term leave of absence cannot be a reasonable accommodation, as a matter of law. “Simply put,” the court wrote, “an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.” The court left open the possibility that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances, insofar as brief periods away from work are akin to a modified work schedule, which the ADA expressly identifies as an accommodation that may be required under the statute. Ultimately, however, the court found that long-term leaves of absence are the “domain of the FMLA,” not the ADA.
1st Circuit Holds Request for 12-Month Leave Extension Facially Unreasonable
In Delgado-Echevarria v. AstraZeneca Pharmaceuticals LP, the plaintiff pharmaceutical sales specialist, Delgado, requested a five-month medical leave of absence, which her employer granted. After Delgado’s approved leave expired, the employer informed her that she would be presumed to have resigned if she did not return to work in approximately ten days. Delgado did not return to work, but faxed documentation to her employer that indicated that her medical condition would probably last “more than a year,” that she was “unable to work at this time,” and would likely be incapacitated for “12 months.” Shortly thereafter, the employer sent Delgado a letter, informing her that because she had neither reported to work as instructed nor contacted her supervisor, she would be deemed to resign.
Delgado asserted several claims against her former employer, including for failure to provide reasonable accommodation. Delgado conceded that she was unable to work at the time of her termination, but contended that a 12-month leave of absence would have enabled her to return to work and was therefore required as a reasonable accommodation. The First Circuit disagreed.
Emphasizing that whether a particular accommodation is reasonable will depend upon the facts known to the employer at the time, the court expressed skepticism about whether Delgado’s employer had reason to believe that an additional year of leave would likely enable Delgado to recover sufficiently to return to work. Critically, the court went on to conclude that—regardless of what the employer did or did not understand—Delgado’s request for an additional 12 months of leave was unreasonable, as a matter of law. The court noted that the “sheer length” of Delgado’s request for extended leave, when considered alongside her prior five-month leave, “jumps off the page,” and concluded that the leave request simply was not “facially reasonable.”
Takeaways for Employers
Although it is impossible to predict how the conflict among the circuit courts will ultimately be resolved, the cases discussed above are reflective of a trend of decisions, holding that extended leave generally will not be required as a reasonable accommodation under the ADA. However, insofar as Severson does not define “long term leave” and Delgado emphasizes that whether leave will be reasonable is a fact-intensive inquiry, neither articulates a bright line rule concerning the amount of leave that might constitute a reasonable accommodation under the ADA.
Absent a decision from the United States Supreme Court, employers in Maine, New Hampshire and Massachusetts are required to follow the First Circuit’s decision in Delgado, as well as previous First Circuit opinions concerning leave as a reasonable accommodation, which Delgado did not overrule. Employers should not implement “maximum leave” policies or otherwise create inflexible rules concerning when or how much leave will be provided as a reasonable accommodation. Instead, employers should:
- Assess each request for leave on an individualized basis
- Engage in an interactive process with each employee
- Consider the consequences of providing the requested leave, including whether the employee’s job can be held open without undue hardship, particularly in the case of a short term or intermittent leave
- Explore reasonable alternatives to leave
- Document with employees all discussions and decisions about leave, so that the communications and bases for decision can be easily recalled and proved in the event of litigation
For answers concerning the ADA generally, or when a leave of absence will qualify as a reasonable accommodation, please contact Katy Rand at 207.791.1267 or krand@pierceatwood.com, or Soyoung Yoon at 617.488.8129 or syoon@pierceatwood.com.