Must an employer grant a RETROACTIVE workplace accommodation if a disabled employee requests one??

No.

At least not unless they drive a DeLorean powered by 1.21 gigawatts of electricity that can travel back through time to convert their retroactive request to a prospective one.

That’s what I took away from a recent federal court decision involving a military veteran who suffers from Post-Traumatic Stress Disorder and depression resulting from the death of a fellow soldier during his service.

On the anniversary of the death, the plaintiff was experiencing especially severe symptoms of his PTSD. So, he called in to work before his start time and left a voice mail for this direct supervisor, telling her that he “needed a mental health day.”  The plaintiff stayed home that day and returned to work the following Monday. Upon returning, he completed and provided his supervisor a “Request for Leave or Approved Absence” form requesting to use accrued sick leave for his absence the previous Friday. On the form, the plaintiff listed “personal reasons (mental health day)” for his absence.

Sometime later, the plaintiff learned that his supervisor had charged him as “AWOL” and did not grant his leave request. So, the next day, the plaintiff asked someone else how to use his accrued leave to cover the day off. However, the defendant did not change the AWOL designation.

The plaintiff later filed a lawsuit under the Rehabilitation Act (akin to the Americans with Disabilities Act), claiming that the defendant had failed to accommodate him. The defendant subsequently filed for summary judgment and prevailed.

But why?

The law requires that an employer consider changing its ordinary work rules, facilities, terms, and conditions to enable a disabled individual to work, provided that the accommodation enables the employee to perform the job’s essential functions without creating an undue hardship for the employer. There’s a laundry list of potential accommodations and unpaid medical leave is one of them. Reasonable accommodations may also include permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment.

But here’s the thing. Reasonable accommodations are always prospective. Even the EEOC says so.

The plaintiff’s request for accommodation was for accrued leave to be applied to a day of work he missed before his request was made. Therefore, he did not seek prospective leave, and granting this request would not have required the defendant to change its ordinary work rules, facilities, terms, and conditions to enable the plaintiff to work. Thus, because the plaintiff did not request a valid accommodation, the court granted summary judgment to the employer.

But, folks, come on! The law may not require an employer to retroactively permit an employee to use sick pay for a disability-related absence, but the law (and common sense) doesn’t preclude it either.