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Indefinite Leave? A No-Go in the Federal Third Circuit!!

Indefinite leave is a thorn in the side of many employers.  Oftentimes, employers have an employee out on leave who receives a doctor’s note that says the leave is indefinite.  What is an employer to do? Sticking your head in the sand is certainly not recommended.  The Third Circuit is one more Circuit to agree that indefinite leaves are not a reasonable accommodation.

The Basics

Under the Americans with Disability Act (“ADA”), an employer has an obligation to provide a reasonable accommodation to a qualified employee with a disability. Leave is often considered a reasonable accommodation.  The length of the leave, however, can be the sticking point.

The Courts Weigh-In

In Kieffer v. CPR Restoration & Cleaning Services, LLC et. al., 2018 U.S. App. LEXIS 12560 (May 15, 2018), a case out of the Third Circuit Court of Appeals, the plaintiff asserted a disability discrimination claim under the ADA and Pennsylvania state law.  The Third Circuit includes federal courts in Delaware, New Jersey, Pennsylvania, and the Virgin Islands. 

In the case, the plaintiff injured his shoulder while working and obtained workers’ compensation benefits.  With the injury, he could not drive and requested a driver to his work site.  His employer refused the driver.  In September, he took leave for an undetermined amount of time and in mid-October said he would be returning to work in mid-November.  When he returned to work, his employer terminated him.

Under the ADA, to establish a claim of discrimination, the plaintiff must show he is qualified for his position because he can perform the essential functions of his job with or without a reasonable accommodation.

The district court found the plaintiff was not a qualified employee under the ADA because he was unable to perform physical labor after his injury with or without a reasonable accommodation, e.g., the requested driver would not allow the employee to perform the essential functions of the job.  Physical labor was an essential function of his job and provision of a driver would not change that.  The more interesting issue was whether the requested time off was a reasonable accommodation and the District Court said no.

The Third Circuit upheld the lower Court’s ruling.  The unique art of the Court’s decision was the requested leave was not a reasonable accommodation.  The Third Circuit found the request was indefinite because it was worded loosely i.e., for “a few weeks” or “a few months.”  Since the leave was not requested for a definite period of time, the Court held it was not a reasonable accommodation. 

Employer Takeaways

For employers, this decision is good news because it is another indication that indefinite leave is not a reasonable accommodation under the ADA.  However, employers outside of the Third Circuit should take this ruling with a grain of salt.  It is not binding outside of Delaware, New Jersey, Pennsylvania, and the Virgin Islands.  Nonetheless a wave of lower court decisions around the country have likewise suggested indefinite leave is not reasonable under the ADA.

Some tips for navigating the ADA and the employee leave saga:

  1. Communicate to the employee before the leave, after the leave, and during. 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 the request. Among other issues, explain why the indeterminate leave is a hardship to the business.
  3. Document, Document, Document!
  4. Analyze whether any other state, local, or federal laws are at play before making a final decision. Oftentimes other laws are at play, such as the Family Medical Leave Act and other similar laws at the local or state level.

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 info@brodyandassociates.com or 203.454.0560.