Is An Extended Leave Of Absence A Reasonable Accommodation Under The Americans With Disabilities Act?

NOTE: This Client Alert applies to employers who are covered by the Americans with Disabilities Act (“ADA”). An employer is covered by the ADA if it employs fifteen or more individuals. The ADA is enforced by the Equal Employment Opportunity Commission (“EEOC”).

In its most basic sense, the ADA requires employers to ensure that qualified individuals with disabilities have equal employment opportunities, equal promotion opportunities, and equal access to benefits and privileges of employment as those without disabilities.

A major duty that the ADA imposes onto employers is to provide reasonable accommodations to qualified individuals if doing so would enable an individual to perform the essential functions of a particular job. A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified individual to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by others without disabilities. Reasonable accommodations should be tailored to an individual’s particular needs. As such, after a qualified individual requests a reasonable accommodation, employers should work with that individual to identify appropriate accommodations. Potential accommodations include: modified/new equipment; accessible materials; job restructuring; working from home; policy modifications; and reassignment.

Whether or not an extended unpaid leave of absence may properly constitute a reasonable accommodation has become a contested subject. According to guidance published by the EEOC[1], providing unpaid leave to an employee with a disability must be considered as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer. The guidance states that this is the case even if: (1) the employer does not offer leave as an employee benefit; (2) the employee is not eligible for leave under the employer’s policy; or (3) the employee has exhausted the leave the employer provides as a benefit (including leave exhausted under a workers’ compensation program, or the Family Medical Leave Act (“FMLA”) or similar state or local laws. Although EEOC guidance does not carry the force of law, it is generally advisable for employers to heed to its guidance in the absence of superseding legislation or court decisions. With respect to extended unpaid leave as a reasonable accommodation, while some courts, like the United States Court of Appeals for the First Circuit, have affirmed that leave may be a reasonable accommodation in some circumstances,[2] other courts have taken a different approach.

The United States Court of Appeals for the Seventh Circuit is the most prominent court to have rejected the premise that an extended multi-month leave of absence may be a reasonable accommodation.[3] In Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), an employee whose job involved manual labor injured his back while at home. According to his doctor, the employee had “multiple herniated and bulging discs in his lumbar spine and was unable to work until further notice.” The employee then took a twelve-week medical leave under the FMLA. It was about ten weeks into his medical leave when the employee notified his employer that he would undergo “disc decompression surgery” on the last day of his leave, and that the typical recovery time for that type of surgery was at least two months. The employee asked his employer for an extension of his medical leave, but his request was denied, and he was informed that his employment would terminate when his FMLA leave expired. The employee subsequently sued his employer, alleging that his employer discriminated against him in violation of the ADA by failing to provide a reasonable accommodation, to wit, a two-or three-month additional leave of absence.

The United States Court of Appeals for the Seventh Circuit disagreed with the employee’s contention. It held that reasonable accommodations are “expressly limited to those measures that will enable an employee to work,” and that an employee on long-term leave cannot work. Because qualified individuals under the ADA are those who can perform essential functions of a job, the court reasoned, an individual requiring long-term leave is not protected by the ADA because that individual would be unable to perform the essential job functions while on leave. The court did, however, leave open the possibility that a short leave of absence— “a couple days or even a couple of weeks”—may be a reasonable accommodation “analogous to a part-time or modified work schedule.”

The United States Supreme Court declined to review the Severson decision, and a circuit split remains on the issue of whether extended unpaid leave may constitute a reasonable accommodation. Although Severson appears to be a well-reasoned decision, others, such as one federal court in Maryland, have said that “there is good reason to doubt the soundness of Severson’s logic.”[4] While there is little room for interpretation in jurisdictions like the First Circuit, where the law is that circumstances dictate whether extended unpaid leave may be a reasonable accommodation, employers in other districts are left with uncertainty when faced with a situation, like in Severson, where a disabled employee who has exhausted all his employer-sponsored leave requests additional leave as a reasonable accommodation. Accordingly, in the face of such uncertainty, an employer should, at a minimum, follow guidance published by the EEOC because that agency is best equipped to interpret the ADA and its guidance regularly advises employers and courts alike. This is not to say that an employer must grant a qualified employee’s request for extended leave as a reasonable accommodation, however. An employer who follows the relevant EEOC guidance may still deny extended leave if it, like any other reasonable accommodation, would cause “undue hardship” on the employer.

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This alert should not be construed as legal advice or a legal opinion on any specific facts or circumstances. This alert is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. The contents are intended for general informational purposes only, and you are urged to consult your attorney concerning any particular situation and any specific legal question you may have. We are working diligently to remain well informed and up to date on information and advisements as they become available. As such, please reach out to us if you need help addressing any of the issues discussed in this alert, or any other issues or concerns you may have relating to your business. We are ready to help guide you through these challenging times.

[1] https://www.eeoc.gov/laws/guidance/employer-provided-leave-and-americans-disabilities-act

[2]Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000). The First Circuit includes the districts of Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.

[3] The Seventh Circuit includes the districts of Illinois, Indiana, and Wisconsin.

[4]Equal Emp. Opportunity Comm’n v. Manufacturers & Traders Tr. Co., 429 F. Supp. 3d 89, 108 (D. Md. 2019).