Leave as a Reasonable Accommodation Continues to Vex Employers

An employee needs time off from work because of a medical issue. The employee is not eligible for leave under the Family and Medical Leave Act (FMLA), so the employer cannot call it FMLA leave.

Since the FMLA does not apply, does the employer have to give the employee leave under the Americans with Disabilities Act (ADA) as a reasonable accommodation? If so, for how long?

The issue of leaves of absence as a reasonable accommodation under the ADA continues to trouble employers. In comparison to the FMLA, which provides fairly bright lines regarding when leave is required and how much leave is permitted, the ADA’s lines are blurry when it comes to leave as a reasonable accommodation.

Medical Leave Can Be a Reasonable Accommodation Under the ADA – Even When In-Person Attendance Is Essential

A very recent decision (April 2022) from the Sixth Circuit Court of Appeals further illustrates this point. In the case of King v. Steward Trumbell Memorial Hospital, Jeanne King worked as an RN for Steward Trumbell Memorial Hospital. King had asthma, and when her asthma flared up badly enough, she needed to miss work. In April 2017, King had an asthma attack that left her unable to breathe, and she continued to suffer from severe asthma-related symptoms for five weeks, which caused her an emergency room stay in the hospital where she worked. During this period of time, she missed her next 14 shifts.

Four days after being released from the ER, King requested FMLA, but King was not an eligible employee under the FMLA as she had not worked 1,250 hours within the prior 12-month period. It took a few weeks for King to find out she was not FMLA eligible, however, and during that period of time, the hospital terminated her for failure to timely apply for a leave of absence. King filed a lawsuit claiming, among other allegations, violations of the ADA for failure to provide medical leave as a reasonable accommodation.

In her lawsuit, King claimed that if she had been given medical leave as a reasonable accommodation, she could have returned to work and satisfactorily performed her job. On the other hand, the hospital argued that regular, in-person attendance as an RN was an essential function of King’s position, and that the hospital was not required to eliminate that essential function as a reasonable accommodation under the ADA.

The trial court ruled that the hospital was right – regular, in-person attendance was an essential function of the RN position – and therefore King’s request for an exception from that requirement was per se unreasonable. The Sixth Circuit disagreed, however, and held that leave can be a reasonable accommodation even when in-person attendance is required to perform the job’s essential functions because the leave “enables the employee to return to work following the period of leave requested as an accommodation – i.e., it enables the employee to perform the essential function of attendance.”

So, What Makes a Leave of Absence Request Reasonable?

Given that a medical leave of absence can be a reasonable accommodation, the question then becomes what makes an accommodation request reasonable? In other words, how much leave is reasonable?

As the Sixth Circuit stated in King, there are few bright-line rules regarding how much leave an employer may have to give as a reasonable accommodation. One general rule that applies in most cases is that an employee’s request for indefinite leave is not a reasonable accommodation. So, if an employee is truly requesting an indefinite leave of absence, then an employer could likely deny that request for accommodation because it is unreasonable.

In contrast to indefinite leave, a request for a defined period of leave can be a request for a reasonable accommodation. For instance, in the King case, King requested five weeks of medical leave, which the Sixth Circuit found to be reasonable. While the reasonableness of a leave of absence oftentimes depends on the circumstances, generally speaking a leave request of 30 days or less is likely to be reasonable. It would likely take an employer about that long to fill the position anyway – so up to 30 days may be OK.

When determining whether the length of a leave request is reasonable, courts can refer to the amount of leave that the employer grants under its medical leave policy. For instance, in the King case, the hospital had a policy allowing for up to one year of non-FMLA leave. In comparison to seeking a year of non-FMLA leave, King was seeking five weeks. Since the hospital allowed up to one year of non-FMLA leave, and King was requesting five weeks, that helped make King’s request reasonable in the Sixth Circuit’s eyes.

Another factor to consider when deciding whether to grant leave as a reasonable accommodation is whether the leave could be effective in allowing the employee to return back to work. If the employee’s prognosis indicates a likelihood of recovery, then that weighs in favor of granting a leave of absence as a reasonable accommodation. On the other hand, a leave of absence for a situation in which the employee likely can never return to work is probably not a reasonable accommodation.

Tips and Takeaways

As the King case illustrates, leaves of absence as a reasonable accommodation continues to trouble employers and causes mistakes that can lead to costly litigation. There are some tips and takeaways that can help tame the leave-as-a-reasonable-accommodation beast:

• If an employee requests leave as an accommodation (and is not FMLA eligible), then the employer should request medical information from the employee’s physician (through the employee because of privacy concerns) that supports the need for leave and specifies an expected return-to-work date.

• If the information from the employee’s physician states that the employee’s leave should be indefinite, then indefinite leave is likely not a request for a reasonable accommodation and the employer could deny the request (with appropriate documentation).

• If the employee’s physician does state an expected return-to-work date, then the employer should determine whether the amount of leave requested is reasonable. In doing so, the employer should consider its own policies concerning how much leave it grants for non-FMLA situations.

• Also, the employer should consider how much time it would take to replace the employee if he or she was terminated. If it would take a comparable amount of time to replace the employee as it would to allow the employee to take leave, then the employer should likely just grant the leave.

• The employer should also consider whether a leave of absence would be an effective accommodation. If an employee shows little to no ability to ever return to work because of ta medical condition, then granting leave for leave’s sake is likely not a reasonable accommodation under the ADA.

• If the employee’s physician requests a reasonable amount of leave for the employee, and the employer decides to grant the accommodation, the employer should send a letter or email to the employee acknowledging the granting of the leave of absence, specifying how long the leave of absence has been granted for, and discussing return-to-work issues. In that letter, the employer should allow for the employee to request an extension of the leave of absence if medical conditions warrant. If the employee returns to work at the conclusion of that leave of absence, the employer may want to consider getting a letter from the employee’s physician releasing him or her to return to work and stating what, if any, restrictions the employee has. If the employee cannot return to work at the conclusion of the leave and does not request an extension, then the employer would likely be on solid footing to terminate the employee at that point in time.

• An employer should treat each reasonable accommodation request as unique, not pre-judge it, and decide whether under the circumstances a reasonable accommodation should be granted.

Although dealing with leave-of-absence issues under the ADA will continue to cause employers issues because of the lack of bright lines, an employer who follows the steps outlined above may help tame the leave-as-a-reasonable-accommodation beast.