Employers pretty uniformly know that the Americans with Disabilities Act requires that they provide a reasonable accommodation to employees and candidates who are qualified disabled individuals under that law. Employers also know that a leave of absence of a reasonable length of time is very often considered a reasonable accommodation under the ADA. Where employers still struggle, though, is determining how long of a leave of absence is reasonable. After all, it’s one thing to shift some duties of a job to accommodate an employee’s needs, but it’s a whole other story to lose that employee from the workforce for a length of time. The work still has to be done.
Yesterday, the 1st Circuit Court of Appeals found that an employee’s request for an additional 12 month leave of absence after a five month short term disability leave was not a reasonable accommodation under the ADA. Most employers, even a large company like the defendant AstraZeneca Pharmaceuticals in that case, are comfortable denying a request for a 12 month leave following a five month leave as an accommodation option under the ADA. But it still leaves employers wondering whether a general guideline exists on how long of a leave will be considered reasonable by a court.
Interestingly, the 1st Circuit cited with authority a 2014 decision authored by our newest Supreme Court Justice Neil Gorsuch on that very issue. Writing in the case of Hwang v. Kan. State Univ., 753 F.3d 1159, 1162-63 (10th Cir. 2014), Justice Gorsuch said the following:
"By her own admission, [the plaintiff] couldn't
work at any point or in any manner for a period spanning more than six months.
It perhaps goes without saying that an employee who isn't capable of working
for so long isn't an employee capable of performing a job's essential functions
— and that requiring an employer to keep a job open for so long doesn't qualify
as a reasonable accommodation. After all, reasonable accommodations — typically
things like adding ramps or allowing more flexible working hours — are all
about enabling employees to work, not to not work.
...
... [I]t's difficult to conceive how an
employee's absence for six months — an absence in which she could not work from
home, part-time, or in any way in any place — could be consistent with
discharging the essential functions of most any job in the national economy
today. Even if it were, it is difficult to conceive when requiring so much
latitude from an employer might qualify as a reasonable accommodation."
Of course shorter leave limits are likely reasonable for employers with fewer employees, or even larger employers under certain circumstances. Employers must remember that each request for accommodation must be examined on a case by case basis and they should document the basis for finding that accommodations are unreasonable. For instance, if an employer faces continuing overtime costs to cover the work of an employee who requests an extended leave of absence, that additional expense and burden on co-workers to work additional hours makes a lengthy leave request unreasonable.
It is unlikely that courts will ever declare a bright line test of reasonableness for leaves of absence under the ADA, so employers must gauge their decisions based on the particular facts of the request before them, how they have handled similar requests in the past, and what courts have found to be reasonable in similar situations
