ADA Leave? Is it Never Ending?
Employers are often familiar with their obligations under the Family Medical Leave Act (“FMLA”). However, they do not always know that the same request for leave may be a reasonable accommodation under the Americans with Disabilities Act (“ADA”) – separate and apart from the leave required under the FMLA or even state disability anti-discrimination laws. This is likely because leave as an accommodation seems like an oxymoron – time off from work helps the employee do his or her job? Yes, if the purpose of leave is to give the employee time to become able to perform the essential functions of his or her position upon return to work. But just how long a leave is reasonable?
The ADA (which applies to employers with fifteen or more employees) prohibits discrimination against any qualified individual on the basis of disability in regard to job application procedures, hiring, advancement, or discharge of employees; employee compensation; job training; and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112 (a). When an employer is on notice of an employee or applicant’s disability, it is required to engage in an interactive process to determine if a reasonable accommodation exists. This process includes meeting with the employee who requests an accommodation, requesting information about the condition and work limitations, asking the employee what he or she specifically wants, showing some sign of having considered the employee’s request, and offering and discussing available alternatives (if one exists) when the request is too burdensome. Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 218-19 (2d Cir. 2001). But the question of how long a leave is reasonable, remains unanswered.
The ADA allows an “indeterminate amount of leave, barring undue hardship, as a reasonable accommodation.” 29 C.F.R. 825.702(b). Does that mean leave under the ADA can be indefinite? Courts around the country have answered this question with a resounding No. For instance, in Parker v. Columbia Pictures Indus., 204 F.3d 326, 338 (2d Cir. 2000), the Second Circuit held “the duty to make reasonable accommodations does not, of course, require an employer to hold an injured employee’s position open indefinitely while the employee attempts to recover . . . .”
The critical question for employers is how much leave is enough? Unfortunately, there is no bright line answer, and a case by case analysis must be conducted in every circumstance. Employers who find themselves grappling with this question should contact Labor and Employment counsel to assess the complicated issues that may be implicated. In most instances, the FMLA, state disability discrimination laws, among others are at play in addition to the ADA. This myriad of laws creates landmines for unsuspecting employers.
All hope, however, is not lost. Case law and the ADA itself does provide guidance in this murky area. First, an employer is not required to provide an accommodation that poses an undue hardship. The ADA defines “undue hardship” as an action requiring significant difficulty or expense, when considered in light of:
(i) the nature and cost of the accommodation needed;
(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
(iii) the overall financial resources of the covered entity; the overall size of the business of covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
(iv) the type of operations of the covered entity, including the composition, structure, and functions of the workplace; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. 42 U.S.C.§ 12111.
However, establishing additional leave is an undue hardship is not always an easy task for employers.
For instance, in Negron v. City of New York, the plaintiff was a correction officer trainee and injured her hand and chest in an accident at the firing range. 2011 U.S. Dist. LEXIS 119463 *3 (E.D.N.Y. Sept. 14, 2011). The plaintiff received medical treatment for her injuries and returned to work. Id. at *8. She experienced continued inflammation in her hand and sought additional treatment. Id. The Health division of the Department of Corrections ordered her to stay home for four days beginning March 24, 2010. Id. When the inflammation did not subside, the Health Division extended the leave. Id. The Department of Corrections terminated the plaintiff’s employment less than a month later. Id. The plaintiff brought a host of discrimination claims, one of which was an ADA failure to accommodate claim. Id. The gist of her claim was she was denied a reasonable accommodation – additional disability leave. Id. at *39.
The City moved to dismiss her claim. The court rejected this argument and found she stated a plausible failure to accommodate claim because “whether additional leave would have enabled plaintiff to perform the essential functions of her job” was not answered. In reaching this conclusion, the Court cited Verrocchio v. Fed. Express Corp., 2010 U.S. Dist. LEXIS 13822, at * 10 (N.D.N.Y. Feb. 17, 2010) (finding that plaintiff, who had been provided nine months of medical leave before his employment was terminated, stated a reasonable accommodation claim under the ADA because “[i]f additional medical leave would have enabled Plaintiff to perform the essential functions of the job, then it is arguable that he was a qualified individual with a disability”). Although these two cases are just a representative sample, the leave requested ranged from a matter of weeks to almost a year and both were found reasonable. This lack of a clear standard poses challenges for employers, who are in the trenches trying to evaluate how long a leave must be offered.
On top of this uncertainty, remember the employee returning from ADA leave must be returned to his or her original position, unlike under the FMLA that only requires an “equivalent” position. Thus, the employer could be required to hold the employee’s position open for the full duration of the leave.
Tips for navigating this nebulas standard include: (1) Communicate to the employee before the leave, after the leave, and in between. This is required under the ADA’s interactive process and a best practice. (2) Determine and document how the requested ADA leave of absence poses an undue hardship to your operations if you plan to deny it. (3) Document, Document, Document.
To assist employers in navigating this nebulas area, the EEOC issued new guidance on May 9, 2016 providing answers to common leave questions which can be accessed here: https://www.eeoc.gov/eeoc/publications/ada-leave.cfm.
Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at firstname.lastname@example.org or 203.454.0560.