Image by ErikaWittlieb from Pixabay
As employment lawyers, we counsel clients that there is no one-size-fits-all approach to requests for reasonable accommodation under the Americans with Disabilities Act. Indeed, they are very fact-specific. Although, there is one fundamental immutable truth; namely, a request for an indefinite leave of absence is never reasonable under the ADA.
Or so, I thought.
Leave it to the Ninth Circuit Court of Appeals to muddy the waters. The facts of this case are relatively straightforward:
- Plaintiff takes leave under the Family and Medical Leave Act following knee surgery.
- After exhausting FMLA leave, the plaintiff gets an additional 16 weeks of leave during which he keeps his employer updated on the status of his recovery.
- Plaintiff then requests another four weeks of leave, with his doctor noting “the indeterminacy of the healing process following knee surgery.”
- The employer concludes that accommodating the plaintiff is no longer reasonable and ends his employment.
The lower court entered summary judgment for the employer, noting that the plaintiff did not specify when his leave would end. But, the Ninth Circuit disagreed.
Why?
Well, the Ninth Circuit pointed out that an employer may have a duty to accommodate where an employee fails to provide a specific return date but provides the employer with regular updates as to his recovery progress. So, an estimated expected return to work date is enough for an extended leave of absence to be reasonable — potentially, at least. (And a request for an additional four weeks of leave seems reasonable on its face.)
So, what can we conclude from this:
- I imagine that practicing employment law on the west coast can feel like this, occasionally.
- A request for an indefinite-ish leave of absence may be reasonable — maybe even outside of the Ninth Circuit. But, the employee must provide regular updates to the employer on the status of his recovery and return.
- If the employee on leave goes radio silent, then the duty to accommodate may disappear as well.
But the BIG QUESTION is how long does an employer have to endure an employee’s return-to-work estimates on an extended leave of absence before saying enough is enough?
I’ll never tell. 😉