When Are Leaves of Absence a Reasonable Accommodation for Disabilities?

Posted in Employee Rights, Medical and Sick Leave, News on June 25, 2014

When employees are diagnosed with serious illnesses or injuries, they often need to take time off to seek treatment and recover. If the employee’s condition qualifies as a disability under the American Disabilities Act (ADA) or the California Fair Employment and Housing Act (FEHA), then an employer may be required to provide the employee with a leave of absence as a reasonable accommodation. A reasonable accommodation is a job modification or adjustment provided to a qualifying employee with a disability that allows the employee to perform the essential functions of her job.

What do the ADA and FEHA say about leaves of absence?

The U.S. Equal Employment Opportunity Commission, which is the federal agency that enforces the ADA and provides guidance on its provisions, has not issued updated guidance since 2002. However, these older guidelines confirm that a leave of absence can be a reasonable accommodation. The EEOC’s Guidelines also provide that:

• While permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee’s disability, an employer does not have to provide paid leave beyond that which is provided to similarly-situated employees.
• An employer must hold an employee’s job open for the employee when the employee has been granted a leave of absence as a reasonable accommodation unless the employer can demonstrate that doing so imposes an undue hardship.
• As a general rule, employers cannot automatically terminate disabled employees after they have been on leave for a certain period of time under “no-fault” leave policies where an employee’s need for a leave of absence has surpassed the “no-fault” limit determined by the employer.
• An employer does not have to provide a leave of absence under the ADA if it can show that doing so would cause an “undue hardship.” However, the employer is still required to comply with other federal and state laws, such as the Family Medical Leave Act (FMLA), which may provide a separate entitlement to the employee for a leave absence.

California prohibits disability discrimination under the Fair Employment and Housing Act (FEHA), which is administered by the Department of Fair Employment and Housing (DFEH). Regulations issued by the DFEH provide that a leave of absence can be a reasonable accommodation under the FEHA. According to the regulations:

• Holding a job open for an employee on a leave of absence or extending a leave provided by the CFRA, the FMLA, other leave laws, or an employer’s leave plan may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer.
• When an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence.
• An employer is not required to provide an indefinite leave of absence as a reasonable accommodation.

How long of a leave of absence must employers give under the ADA or FEHA?

Neither the EEOC nor DFEH has issued regulations or guidelines detailing the precise amount of leave that employers must give employees as a reasonable accommodation, and court decisions have held that each case is considered on its specific facts and circumstances. See Nunes v. Wal-Mart Stores, Inc. (9th Cir. 1999) 164 F.3d 1243, 1247 (“Determining whether a proposed accommodation (medical leave in this case) is reasonable, including whether it imposes an undue hardship on the employer, requires a fact-specific, individualized inquiry.”).

For example, in Nunes v. Wal-Mart Stores, Inc. (9th Cir. 1999) 164 F.3d 1243, a reasonable accommodation case under the ADA, the Court of Appeals reversed the district court’s summary judgment order in favor of the employer where the employee had been on leave for seven months, her doctor had certified that she would not be able to return to work for an additional month or two, and she was learning techniques to reduce her symptoms. The Court of Appeals noted that the employee “went out on medical leave with the blessing of Wal-Mart, whose stated benefits policy included unpaid medical leave of up to one year.” While the Court did not hold that the requested amount of leave was a reasonable accommodation, its holding did find that, given the employer’s policies, such an absence was not automatically deemed an undue hardship. The court noted that “weighing against Wal-Mart on these issues are its stated benefits policy that eligible employees could take up to one year of unpaid medical leave, and its regular practice as a large retailer of hiring temporary help during the holiday season.”

However, in Walsh v. United Parcel Service (6th Cir. 2000) 201 F.3d 718, 728 a court found that a Plaintiff’s request to extend a year and a half leave of absence was unreasonable. The Plaintiff in the case was given a year of paid disability leave by UPS, and then six additional months of unpaid leave, as an accommodation. The Plaintiff then requested an additional 90 days of leave as an accommodation for diagnosis and treatment by his doctors. The Court held that the “Plaintiff knew of his injury for years, was on salary continuation for a year, and unpaid medical leave for five months before being terminated….[P]laintiff has made no credible showing why the nearly year and a half leave defendant gave him was somehow an inadequate period for him to obtain an evaluation. Further, the evaluation that the plaintiff received from his homeopathic physician, months after his termination, still did not indicate a time frame or circumstances under which plaintiff could return to work….[W]hen the requested accommodation has no reasonable prospect of allowing the individual to work in the identifiable future, it is objectively not an accommodation that the employer should be required to provide.”

When would a leave of absence create an “undue hardship” for an employer?

Under the ADA and FEHA, an employer may not have to provide a leave of absence as a reasonable accommodation if it creates an “undue hardship” for the employer. The ADA and FEHA define undue hardship similarly.

Under the ADA an undue hardship is defined as a “significant difficulty or expense incurred by a covered entity,” which is measured by the following factors:

• The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding.
• 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, and the effect on expenses and resources.
• The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type, and location of its facilities;
• The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity, and the geographic separateness, and the administrative or fiscal relationship of the facility or facilities in question to the covered entity; and
• The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

Discuss Your Leave of Absence Questions With An Attorney

Whether an employer is required to provide a leave of absence, and the length of that leave of absence, may vary significantly based on the employee’s particular circumstances. If you have been fired for taking a leave of absence, contact our San Francisco attorneys today. Employees who have other questions regarding leave of absence, contact us today to discuss your rights.