As we all know, the Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for known disabilities of employees to enable them to perform a position’s essential functions, unless doing so would result in undue hardship to the employer’s operations. 42 U.S.C. § 12112(b). Under the ADA, selecting an appropriate and reasonable accommodation requires a highly individualized, case-by-case analysis, one that depends on the employee’s disability and the essential functions of the job.
As discussed in our July 30, 2013 blog entry, the EEOC has concluded that employees may be entitled to a leave of absence as a reasonable accommodation, unless the employer demonstrates that holding open the position would impose an undue hardship.
At What Point Is Enough Enough?
Although the ADA does not mandate any specific time limit on the amount of leave a disabled employee may take as a reasonable accommodation, the majority of courts to consider the issue have found that a leave of absence cannot be indefinite. See, e.g., Munoz v. Seton HealthCare, No. A-11-CA-151-LY, 2013 WL 1293425, at *9 (W.D. Tex. Mar. 26, 2013); Ousely v. New Beginnings C-Star, Inc., No. 4:09-CV-1957 HEA, 2011 WL 4899950, at *5 (E.D. Mo. Oct. 14, 2011) (“an indefinite leave of absence [is] unreasonable because it does not enable a disabled person to work and the cost to any employer to pay both the absent worker and replacement worker to fill the same position for an indefinite period of time constitutes an undue burden on the employer”). But see Willingham v. Town of Stonington, 847 F. Supp. 2d 164 (D. Me. 2012) (denying summary judgment where employee requested leave of absence “until we found out exactly what the situation would be” because “[s]ome employees, by the nature of their disability, are unable to provide an absolutely assured time for their return to employment, but that does not necessarily make a request for leave to a particular date indefinite”).
In other words, in most jurisdictions, a leave of absence may be a reasonable accommodation if the leave would allow an employee to return to work in the foreseeable future. An indefinite leave of absence that does not include an anticipated return-to-work date may not be a reasonable accommodation.
What Do I Do When An Employee Doesn’t Know When She’ll Be Returning?
But, what if an employee has a disability that requires a leave of absence through “at least” January 2014 with a return date being “unknown”? Does the company have to accommodate this request? Can the company replace the employee? Terminate her? At what point? This is the exact dilemma faced by an employer in a case before the Eighth Circuit.
The Eighth Circuit found that the employee must provide some idea as to when she will be able to return, and must demonstrate that she will, in fact, eventually be able to return. Peyton v. Fred’s Stores of Ark., 561 F.3d 900 (8th Cir. 2009). An employee’s failure to provide these assurances, in most circumstances, will support a conclusion that the requested leave is not a reasonable accommodation. The court found that at the time the employer terminated the employee: the employee was unable to perform the essential functions of her job; the employer had no information indicating when, if ever, she would be able to return to work; and there was no reasonable accommodation that would have allowed her to do so. Id. at 902-03. Therefore, the employer did not violate the ADA as a “request for an indefinite leave of absence  is not a reasonable accommodation.” Id. at 903.
Note, though, that the point at which an employee’s leave of absence becomes an undue hardship to the employer and, thus, can be ended will vary from employer to employer, and also from employee to employee. Each specific leave of absence must be analyzed on a case-by-case basis.
What Are Some Best Practices?
Glad you asked! Before an employee goes out on a leave of absence or during the reasonable accommodation interactive process with an employee, the employer has the right to ask when the employee anticipates returning to work. The employer should document the discussion, including the date by which the employee anticipates returning.
But, what if the employee fails to return by that date, or what if the employee notifies the employer that now his return-to-work date is unknown? As explained in our July 30, 2013 blog entry, it’s best to avoid a policy or practice of automatically terminating employees on medical leave to avoid running afoul of the ADA. So, it’s always a good practice to contact the employee in writing and ask if he has a return-to-work date, or if he could return to work immediately with or without a reasonable accommodation. If the employee fails to respond, or responds by answering “no” to both questions, the employer’s duty to accommodate may be considered satisfied. And, be sure to save both the documentation that the employer sent to the employee and any response from the employee!
A word of caution, though, an employer should always evaluate whether the employee is entitled to protection under other laws, such as workers’ compensation or the Family and Medical Leave Act, before making any decisions about the employee’s employment.