The question frustrating employers for decades remains: how much leave, beyond FMLA and employer policies, must an employer give a disabled employee as a reasonable accommodation under the ADA? More than a year after the EEOC hosted a public hearing on this topic, raising hopes that guidance may be forthcoming, only to have those hopes dampened if not dashed by the fifteen months-and-still-counting of waiting, the Tenth Circuit has provided some specific guidance. Robert v. Board of County Commissioners of Brown County, KS. (10th Cir. August 29, 2012).
“There are two limits on the bounds of reasonable for a leave of absence,” the court said. “The first limit is clear: The employee must provide the employer an estimated date when she can resume her essential duties….Without an expected end date, an employer is unable to determine whether the temporary exemption [from performing essential duties] is a reasonable one.”
“The second is durational,” the court added. “A leave request must assure an employer that an employee can perform the essential functions of her position in the ‘near future,”” the court said, referencing an Eight Circuit case where that court held that a six month leave request was too long to be a reasonable accommodation.
Since the plaintiff in Robert failed to provide a “definite estimate” of her ability to resume the essential functions of the job, the court held that “any further exemption following six months of temporary accommodation would be unreasonable as a matter of law.” The court affirmed summary judgment for the employer.
While a “bright line” leave limit would be much-welcomed and administratively convenient, it is probably premature to assume that the Eighth and Tenth Circuit decisions create a six month “bright line,” especially given the ADA’s injunction that employers do an “individualized assessment” when making disability-related decisions. But these opinions, combined with the Seventh Circuit’s repeated reference to a “multi-month leave” as being a sufficient accommodation, are beginning to sharpen the issue and provide that much-needed, and long-awaited guidance.