On May 20, 2011, the Northern District of California, denying the employer’s motion for summary judgment, held that the employer “could not enforce a maximum leave policy without first considering whether a reasonable accommodation – such as an additional short term leave – would be appropriate” after the employee exhausted available leave. LaFever v. Acosta, Inc., et al, Case No. C10-01782 (May 20, 2011).

Maria LaFever, the plaintiff-employee, began working for Acosta, the defendant-employer, in August of 2007. LaFever had been diagnosed with a number of medical conditions and, in early 2008, began experiencing symptoms that made it difficult for her to continue working. Acosta permitted LaFever to take full FMLA leave, which LaFever exhausted by September 2008. Acosta subsequently terminated LaFever in October 2009 and declined to re-hire LaFever in February 2009, despite the fact that LaFever was able to come back to work and had asked Acosta to consider her for her old position or any available position.

Acosta defended its decision to terminate and not re-hire LaFever by arguing that it had reasonably accommodated LaFever when it provided her with the maximum amount of leave available under its employment policies. The district court rejected Acosta’s argument, holding that while Acosta was not required to “wait indefinitely for an employee’s health” to improve, it was under an obligation to work with LaFever to devise a reasonable accommodation, including offering LaFever a short extension of leave or modified work schedule, if appropriate. The court emphasized that an employer is required to engage in a “timely, good faith, interactive process” with an employee or job-applicant to determine a reasonable accommodation. Because Acosta failed to engage in this process during or at the end of LaFever’s leave time, the district court denied its motion for summary judgment.

Since the LaFever decision, the EEOC has began an inquiry into the facts and circumstances of employers’ use of leave policies as a form of reasonable accommodation under the ADA, with the aim of providing clearer guidance on this issue in the future. At the request of employers and employee rights advocates, the EEOC held a meeting on June 8, 2011 to hear from a diverse panel about what they believe are employer obligations with respect to leave as a reasonable accommodation. Much of the written testimony submitted by the panel members identified the problems employees face when they cannot return from a company-approved leave of absence, but also the undue hardship employers can face when leaves of absence appear indefinite. During the meeting, the Regional Attorney of the EEOC’s Chicago District office, John Hendrickson, explained that the EEOC has increased efforts to pursue litigation against employers who have inflexible leave policies. Hendrickson also made it clear that employers must seriously consider employees for reasonable accommodations that would return employees to work in some capacity. Panelists representing employers explained that it is difficult for employers to effectively run their businesses when the current guidelines do not make it clear what type of leave is reasonable. Both sides agreed that more guidance is needed.

Lessons for Employers

Employers must be flexible with their leave policies and cannot terminate a disabled employee simply because the employee exhausted available leave and is unable to return to work at the end of this time. When accommodating a disabled employee through use of a leave policy, the employer should work with the employee to determine whether an extension of leave time, a modified work schedule or some other reasonable accommodation would best suit the employee’s situation.