December 22, 2017

How Much Leave is Too Much?

by Janica Pierce Tucker, Taft Stettinius & Hollister LLP

Many employers ask, “How much leave is too long as an accommodation under the Americans with Disabilities Act (ADA)?” The Seventh Circuit recently answered that question.

It’s not reasonable for an employee to receive additional leave under the ADA after the employee has exhausted their twelve weeks of FMLA. While this decision is limited to Illinois, Indiana and Wisconsin, it brings some clarity to the otherwise murky law on reasonable accommodations. This opinion suggests multi-month leaves of absence are not required by the ADA.

Despite this small glimmer of hope for employers, questions remain. Not all requests for an unpaid leave of absence are an unreasonable accommodation. For example, an employer may be required to grant an employee’s request for a few days or weeks off from work as a reasonable accommodation under many circumstances.

The EEOC, however, takes a somewhat different stance than the courts. Many employers have policies that prohibit an employee from returning to work after a long period of leave. In August 2017, the EEOC settled an eight-year-old lawsuit against United Parcel Service (UPS), challenging UPS’s policy of discharging workers who cannot return from medical leave after one year. This settlement was a “win” for the EEOC in its effort to restrict employers’ use of maximum leave policies.

The current conflicting circuit court rulings and the EEOC’s recent settlement serve as a reminder to employers that:

  1. An employer may have a leave policy providing a “maximum” amount of leave, but may have to make exceptions for an employee with a disability.
  2. These leave policies may violate the ADA when they effectively require the automatic termination of an employee with a disability after he/she reaches a prescribed, inflexible leave limit.
  3. Employers should utilize the interactive process to ensure additional leave is not available as a reasonable accommodation before terminating an employee under a maximum leave policy.

 


Pierce Tucker