While most courts agree that coming to work regularly is an essential job function, many courts also have found that leave for a specified period of time is a reasonable accommodation if it does not cause an undue hardship.
Chai Feldblum, a commissioner with the U.S. Equal Employment Opportunity Commission, discussed “leave as a reasonable accommodation” under the ADA at an employment law conference last month. Attorney Jeff Nowak, with the law firm Franczek Radelet, was a co-presenter.
EEOC established guidance from the “very beginning” that leave could be one form of reasonable accommodation, without rigid limits, Feldblum said.
While the Family and Medical Leave Act is a leave law, ADA is an “inadvertent” leave law, Feldblum said during the general session at the Disability Management Employer Coalition FMLA/ADAAA conference. Leave is “always” a reasonable accommodation, she said, because it is plausible and subject only to the employer’s undue hardship defense.
How Employers Can Prove Undue Hardship
Undue hardship can be defined as significant losses in productivity because work is completed by: (1) less effective, temporary workers; (2) last-minute substitutes; or (3) overtired, overburdened employees working overtime who may be slower and more susceptible to error, said Nowak.
According to information from Mercer, indications of undue hardship include: (1) lower quality and less accountability for quality; (2) lost sales; (3) less responsive customer service and increased customer dissatisfaction; (4) deferred projects; (5) increased burden on management staff required to find replacement workers, readjust workflow or readjust priorities; (6) increased stress on overburdened co-workers; and (7) lower morale.
EEOC Guidance
EEOC has been working on issuing guidance on leave as a reasonable accommodation for several years. When asked by Nowak at DMEC whether new guidance was forthcoming, Feldblum said that it was up to EEOC Chair Jacqueline Berrien to determine when to “move” that guidance.
Employer Takeaways
Employers must engage in the ADA interactive process after FMLA leave is exhausted to determine if extended leave is a reasonable accommodation and necessary in the individual circumstance. While ADA protects an extended period of absence, most courts have said that a requested indefinite period of leave is not reasonable under ADA.
To help handle accommodation requests, employers should review job descriptions and reexamine “essential functions” so that they better understand how employees spend their time — and how it may be possible for them to return to being productive.