Leave as an ADA Accommodation: When Is Enough, Enough?

By Eric B. Meyer

Unquestionably, when it come to tackling the Americans with Disabilities Act, one of the biggest issues affecting the workplace and accommodating disabled employees is providing leave as a reasonable accommodation. And, a question that plagues most employers is just how much leave is enough?

We know that an indefinite leave of absence is not a reasonable accommodation. But, what about when an employee takes one leave, after another, after another.

The Eleventh U.S. Circuit Court of Appeals in Atlanta offered some guidance recently in Santandreu v. Miami Dade County. When an employee is uncertain about the duration of his condition, a leave of absence is not a reasonable accommodation:

In the instant case, Santandreu never demonstrated that he would be able to return to work within a reasonable time. Santandreu had already taken several leaves of absence, received a total of 15 months of leave, and still had no way of knowing when his doctor would allow him to resume full-time work.

Even at the time of trial, Santandreu and his doctors attested that he still had not received medical clearance showing that he was able to work. Because Santandreu was unable to show that he would be able to perform the essential functions of the job anytime in the reasonably immediate future, his request for additional leave was not a request for a reasonable accommodation.”

No clear rule on acceptable ADA time off

This case is helpful — to a point.

Most employers faced with leave requests (as an ADA accommodation) are given an initial date certain (or estimated date) for the employee to return. There are times when that date will need to be pushed back. In Santandreau, enough was enough after about 17 months and four requests for extensions.

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Depending on the resources of your business, maybe the line could have been drawn sooner. Or maybe more leave would have been reasonable. What I’m saying is, Santandreau notwithstanding, there is no bright-line rule on time off. Except that:

  1. Indefinite leave is unreasonable; and,
  2. If your leave employee handbook quantifies a maximum amount of leave (e.g., no employee may take more than 12 consecutive weeks off), you’re asking for trouble — because rigidity is anathema to the interactive dialogue and individualized assessment that the ADA requires when determining reasonable accommodations.

Instead, focus on open communication and good documentation. These are the hallmarks of reasonableness that a jury will understand if your ADA defenses are tested.

More importantly, these are the attributes of good companies that will, hopefully, avoid lawsuits altogether and promote a happy workplace.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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