Executive Summary: When is modification of a no-fault or inflexible leave of absence policy required as an accommodation under the Americans with Disabilities Act (ADA)? Although the Equal Employment Opportunity Commission (EEOC) has taken the position that, absent undue hardship, an employer must modify such a policy to allow for additional leave to a disabled employee, the case law interpreting the ADA has provided no definitive guidance for determining when requests for additional leave may be unreasonable under the Act.
The EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA specifically provides that so-called "no-fault" leave policies, under which employees are automatically terminated after they have been on leave for a specified period of time, are illegal under the ADA. In support of this position, the EEOC has brought a series of lawsuits against employers challenging inflexible leave policies resulting in large monetary settlements for groups of employees denied leave under such policies. For example, in June 2014, a New Jersey health care employer agreed to pay $1,350,000 to settle a case brought by the EEOC challenging the employer's policy limiting leaves of absence to 12 weeks.
The EEOC's construction of the ADA has found support in the courts. There are a number of decisions that have required employers to grant additional leave to disabled employees as a reasonable accommodation. For example, in Garcia-Ayala v. Lederle Parenterals, Inc. (1st Cir. 2000), an employee requested an extension of her leave of absence after the one-year period of leave under the employer's policy had expired. In response, the employer terminated the employee and she sued under the ADA. The First Circuit Court of Appeals found for the former employee, rejecting the employer's argument that the ADA can never impose an obligation on a company to grant an accommodation beyond the leave allowed under the company's own leave policy. The Court of Appeals also concluded that the employee's requested accommodation of an additional five months of leave time was not per se unreasonable. The court held that there must be an individual factual determination in each case that continuing the leave of absence would be an undue hardship for the employer.
Other federal courts of appeal have similarly concluded that reasonable accommodation under the ADA may include offering a disabled employee a limited amount of additional leave time over and above the limits established in an employer's uniformly applied "neutral" leave policy. See Graves v. Finch Pruyn & Co. (2nd Cir. 2006); Cehrs v. Nw. Ohio Alzheimers Research Ctr. (6th Cir. 1998). The key determinate in each case appears to be the employer's willingness to consider the disabled employee's requested accommodation, especially where the additional leave time requested is not indefinite and is fairly short in duration. Graves (a "couple of weeks"); Cehrs (one month).
There are, of course, decisions that have more strictly construed an employer's obligation to provide extensions of leaves of absence to employees who cannot perform the duties of their positions, especially when the employer's policy already provides for substantial leave time to deal with disabilities or the employee cannot give a date certain for returning to work. Thus, it is clear that the ADA does not obligate an employer to grant indefinite leaves of absence to disabled employees as a reasonable accommodation. See Myers v. Hose (4th Cir. 1995) (holding that a "reasonable accommodation [did] not require the [employer] to wait indefinitely for Myers' medical conditions to be corrected . . .").
Another encouraging development for employers is the willingness of some courts to find a request for an extended leave of absence to be an unreasonable accommodation based on duration alone. For example, in Robert v. County Commissioners of Brown County, Kansas (10th Cir. 2012), the Court of Appeals affirmed a district court's holding that an employee's request for leave beyond six months was unreasonable both as a matter of law and because the employee failed to provide a definite estimate as to when she could return to full duty. Other courts have reached similar conclusions. See Epps v. City of Pine Lawn (8th Cir. 2003) (the Court of Appeals found that a six-month leave request was too long to be reasonable given the relatively small size of the municipality that employed the plaintiff); Melange v. City of Center Line (6th Cir. 2012) (employer's policy of terminating employees who failed to return to work at the expiration of a one-year leave of absence did not violate ADA).
Employers' Bottom Line
The foregoing discussion of cases dealing with leaves of absence as a reasonable accommodation under the ADA allows only one conclusion: There is simply no "bright-line" for determining when an employer can safely tell a disabled employee who has made repeated requests for extensions of a leave of absence that "enough is enough." Although a policy allowing a substantial period of time for leaves of absence can obviously be helpful in establishing the reasonableness of an employer's response to a disabled employee's need for accommodation under the ADA, it will not automatically insulate the employer from liability.
In light of the EEOC's enforcement efforts in this area and the conflicting decisions of the courts on this issue, employers should avoid leave policies that impose inflexible limits on leaves of absence. The better practice is to interact with the disabled employee and assess the situation on an individual basis to determine whether a request for an extension of the leave is a reasonable accommodation. If the disabled employee cannot provide an estimated date for returning to work within a short period of time, the request for an extension of the leave may be an undue hardship, especially where the employee's continued absence presents financial and operational difficulties for the employer.
If you have any questions regarding this Alert or other labor or employment related issues, feel free to contact the author, Paul M. Lusky, plusky@fordharrison.com, an attorney in FordHarrison's Baltimore office. You may also contact the FordHarrison attorney with whom you usually work.