Back in June, I discussed here how the EEOC was discussing the use of leave from work as a reasonable accommodation under the ADA. The question I
asked back then was how much leave is reasonable? When is enough,
Well, I can tell you now -- and I suppose I
could have told you then -- that indefinite leave is generally not an option
for employees (unless the employer acquiesces). At least that's what one
federal court ruled last week.
In Ousley v. New Beginnings C-Star, Inc., the plaintiff,
experiencing pain in his knee, took leave under the Family
and Medical Leave Act. Near the end of his 12-week leave, the plaintiff
received a doctor's note indicating that he could return to work on a date
"to be determined." The day after the plaintiff's FMLA expired,
the defendant-employer notified the plaintiff that he had exhausted his FMLA
leave. The plaintiff neither submitted a fitness-for-duty certification nor
provided a date by which he expected to return to work. Having left his
employer hanging, the defendant terminated the plaintiff "because of his
inability to return to work in a timely manner."
The plaintiff subsequently filed a charge of
discrimination with the EEOC, alleging disability discrimination under the Americans with Disabilities Act.
An employee's indefinite leave of absence
creates an undue burden for the employer.
The court assumed that the plaintiff's knee issue
qualified as a disability for ADA purposes. However, just because a disabled
plaintiff gets fired doesn't mean that his employer violated the ADA. The
plaintiff still must show that he is qualified to perform the essential
functions of the job with or without a reasonable accommodation.
Several courts have held that regular and reliable
attendance is a necessary element of most jobs. And the court here inferred
that plaintiff's particular position required consistent and regular
attendance. The plaintiff nonetheless claimed that the defendant could
have accommodated him with an extended leave of absence. However, given that the
plaintiff had not indicated, at all, when he may return, the court viewed his
request as one seeking an indefinite leave of absence.
Citing a slew of authority, the court determined that an
indefinite leave of absence is unreasonable "because it does not
enable a disabled person to work and the cost to any employer to pay both the
absent worker and replacement worker to fill the same position for an
indefinite period of time constitutes an undue burden on the employer."
Although I am not surprised at the outcome here, I
anxiously await what courts around the country determine to be a reasonable
finite amount of leave, if any, that would constitute a reasonable
accommodation to an employee -- beyond the 12 weeks of FMLA leave.
This article was originally published on Eric B. Meyer's blog, The Employer
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