By Eric B. Meyer
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 Americans with Disabilities Act. The question I asked back then was how much leave is reasonable? When is enough, 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 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.
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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 was originally published on Eric B. Meyer’s blog, The Employer Handbook.