When Does Lengthy ADA Leave Constitute an Undue Hardship?

​Some leaves of absence go on and on, making HR wonder when leaves under the Americans with Disabilities Act (ADA) pose an undue hardship on an organization—such that they aren't required ADA accommodations.

Disruption to the business is often a more effective argument than cost for an undue hardship.

"Employers jump into the undue-hardship analysis far too late," said Jeff Nowak, an attorney with Littler in Chicago. They often conduct the undue-hardship analysis only after employees have exhausted Family and Medical Leave Act (FMLA) leave and requested additional leave as an accommodation, he noted.

Nowak said employers "have the flexibility as early as day one of an employee's FMLA leave to assess whether the absence constitutes an undue hardship" under the ADA. "Although the FMLA certainly would protect that employee's job for up to 12 weeks, the employer certainly can use what occurred during the FMLA leave period as a basis to determine how an extended leave beyond FMLA will impact operations."

But the Equal Employment Opportunity Commission (EEOC) takes the position that policies calling for termination after the employee has been absent for a certain period, such as three or six months, do not meet the ADA's obligation for the employer to talk with the employee about possible accommodations.

Appeals courts vary on the length of leave required as an accommodation. Some appeals courts, like the 9th U.S. Circuit Court of Appeals, take a more liberal view of the circumstances in which extended leave may be a reasonable accommodation, said Marjory Robertson, assistant vice president and senior counsel for disability insurance company Sun Life in Wellesley Hills, Mass.  

The 7th Circuit, on the other hand, has "made clear that extended leave [beyond FMLA time off] is virtually never a reasonable accommodation," she added.

Indefinite leave is not a reasonable accommodation, but courts define indefinite leave differently, Robertson noted. Courts in the 9th Circuit recently have indicated that even repeated extensions without a clear return-to-work date do not necessarily make a leave request unreasonable, she said. "One approach for employers if they are facing a situation where several extensions have been granted, and they are facing yet another, is to ask the employee to have their health care provider complete a supplemental medical certification," Robertson said.

The supplemental medical certification should explain how certain the health care provider is that the employee will be able to return to work at the end of the most recently requested extension and to provide the basis for the answer.

"This will sometimes elicit a response that the period of recovery is unclear," Robertson said. "In those situations, it may be legally acceptable to deny the extension request."

Nowak said the employer should obtain the following information from the health care provider when there are continuous leave requests:

• Medical documentation specifying the amount of additional leave needed.
• The reasons for the additional leave.
• An explanation of why the initial estimate of a return date proved inaccurate.
• Information the employer considers relevant in determining if the requested extension will create an undue hardship.
  

Undue Hardship

Large employers can have a difficult time showing that extended leaves cause an undue hardship, Robertson said. "This is especially true where it will take time to fill the role and the employee will be back to work before a new candidate can be hired."

But if a position is critical to operations, an employee's leave may significantly impact operations, even if one employer has more resources than its peers, Nowak said.

It's particularly challenging for a California employer to establish undue hardship, said Joan Casciari, an attorney with Seyfarth in Chicago.

"If the leave keeps being extended, my California colleagues recommend an approach where the employee is asked to have the [medical] provider opine on the likelihood of the employee's return to work," she said. "Even California does not require an employer to hold a job for someone on an indefinite leave, but getting there is tricky."

Keep state and local leave laws in mind. In California, a pregnant worker who subsequently gives birth could be entitled up to seven months of leave—four months of California Pregnancy Disability Leave for disability due to pregnancy, disability, childbirth or related medical conditions plus up to 12 workweeks of leave under the California Family Rights Act.

"In addition, the employee could receive pay during the leave via the California Disability Insurance or Paid Family Leave programs," said Sheri Pullen, senior compliance manager at ReedGroup, headquartered in Westminster, Colo. "This doesn't account for leaves that might be mandated by the employee's municipality or employer."

[SHRM members-only resource: What You Need to Know About the Americans with Disabilities Act]

Options Other Than Termination

Even if leave can't be extended, the employer should consider other options instead of termination.

Robertson recommended that employers consider simple accommodations, such as allowing an employee to return to work on a gradual basis with modifications, part-time work gradually increasing over time, and telework or temporary light duty. These accommodations "can ease the return to full time," she said.

"Employers need to be careful when terminating long-term employees or refusing to allow an extended leave for one employee when they have allowed it for another," Robertson cautioned.

"Before terminating an employee who cannot return to their position or is on indefinite leave, an employer should always determine if there is another vacant position for which the employee is qualified and to which the employee can be transferred," said Delia Isvoranu, an attorney with Duane Morris in San Francisco.

Isvoranu also recommended that employers:

• Involve HR, as managers tend to conclude extended leave cannot be provided without talking with the employee and exploring alternatives.
• Have a reasonable basis for believing the leave is indefinite.
• Consider all options for continuing to keep the employee's position open and review how the absence is affecting the business. Document the hardship caused by the extended leave, both the financial impact (e.g., if temporary workers are filling the role) and the business impact (e.g., if work isn't getting done).