A Capehart Scatchard Blog

To Extend (or Not Extend) an ADA Leave of Absence: That is the Question

By on September 6, 2018 in ADA, Employee Rights with 0 Comments

One of the more difficult questions that perplex employers is:

When can a leave of absence that has been granted as a form of disability accommodation under the Americans with Disabilities Act (“ADA”) be ended when there are no prospects that the employee will be returning to work in the near future? 

I get this question at least once or twice a month in my practice.  As most employers know, sometimes under the ADA, a leave of absence can be considered to be a required form of reasonable accommodation.  That is the easiest part of the analysis.  But what do you do with the employee who lingers on leave without any discernable return to work date, or worse yet, how do you deal with the situation where the employee’s doctor is unwilling to provide that return to work date because the doctor is just not sure when the employee will be able to return?

As existing case law recognizes, the accommodation duty does not require that an employer provide an employee with an indefinite leave of absence.  Thus, if neither the employee, nor the employee’s doctor, can give a firm return date, then the employer is free to end any leave provided, and can also terminate that employee because the law does not require an employer to hold a job position open indefinitely. Right now, existing case law views six (6) months to be the latest point that most courts would deem a leave of absence to be not excessive or too long to grant. But what happens when the employer is provided with a firm date but that date seems to change monthly because the doctor believes that the employee is still not ready to work and the doctor keeps taking the employee out on a monthly basis?

An employer can avoid the ADA’s accommodation duty by establishing that the requested accommodation by the employee is unreasonable, i.e., that it would impose an undue hardship.  Under the ADA, the term “undue hardship” means an accommodation “requiring significant difficulty or expense,” when considered in light of several factors. 42 U.S.C § 12111 (10); 29 C.F.R. § 1630.2 (p).  These factors include: (1) the nature and cost of the accommodation; (2) the overall financial resources of the facility involved in providing a reasonable accommodation; the number of employees at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (3) the overall financial resources of the employer; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facility; and (4) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographical separateness, administrative, or physical relationship of the facility or facilities in question to the covered entity. See, §12111(10)9B)(i)-(iv).

The EEOC on May 9, 2016 issued the following entitled enforcement guidance, “Employer-Provided Leave and the Americans with Disabilities Act” (“Guidance’), to further assist in the assessment of whether an employee requested leave would result in an undue hardship to the employer.  This Guidance states initially that, when assessing whether to grant leave as a reasonable accommodation, an employer may consider whether the leave would cause an undue hardship. The Guidance then goes on to indicate further that, if it would cause an undue hardship, the employer does not have to grant the leave.

Under the Guidance, determination of whether providing leave would result in undue hardship may involve consideration of the following items:

  • the amount and/or length of leave required (for example, four months, three days per week, six days per month, four to six days of intermittent leave for one month, four to six days of intermittent leave each month for six months, leave required indefinitely, or leave without a specified or estimated end date);
  • the frequency of the leave (for example, three days per week, three days per month, every Thursday);
  • whether there is any flexibility with respect to the days on which leave is taken (for example, whether treatment normally provided on a Monday could be provided on some other day during the week);
  • whether the need for intermittent leave on specific dates is predictable or unpredictable (for example, the specific day that an employee needs leave because of a seizure is unpredictable; intermittent leave to obtain chemotherapy is predictable);
  • the impact of the employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner (for example, only one coworker has the skills of the employee on leave and the job duties involved must be performed under a contract with a specific completion date, making it impossible for the employer to provide the amount of leave requested without over-burdening the coworker, failing to fulfill the contract, or incurring significant overtime costs); and
  • the impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer.

Guidance, pg. 5-6.  In addition, the employer may also consider the cumulative impact of the leave sought with leave already taken.  Guidance, Id.

Therefore, whenever presented with an ADA leave request, it is wise for an employer to think about these factors and, where eligibility for the leave is unclear, to consult with an experienced labor and employment lawyer to assist in determining whether to grant, continue or end a previously granted ADA related leave of absence.


About the Author

About the Author:

Mr. Smith is Co-Chair of Capehart Scatchard's Labor & Employment Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitrations, drug testing, and employment related contract issues.


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