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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. Anecdotally, 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.
When is enough enough?
The Eleventh Circuit Court of Appeals offered some
guidance recently in Santandreu v. Miami Dade County [an enhanced version of this opinion is available to lexis.com
subscribers]. 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
fifteen 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
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.
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
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 article was originally published on Eric B. Meyer's blog, The Employer
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