What is Reasonable Accommodation Anyway? Guidelines for giving sick or injured employees time off

In the coming months, the Equal Employment Opportunity Commission (EEOC) is expected to issue final regulations implementing the ADA Amendments Act (ADAAA)--legislation that expands the protections afforded to disabled individuals. As we await these regulations, now is a good time for employers to review their obligations under federal disabilities law. One particular area of interest--and confusion--is what accommodations an employer must provide to injured or ill employees who request extended periods of leave.

By way of background, the Americans with Disabilities Act was signed into law by President George H.W. Bush in 1990. Title I of the ADA prohibits employers with 15 or more employees from discriminating against a qualified individual with a disability. An individual is considered qualified if he or she can perform the essential functions of the job, either with or without a reasonable accommodation. Employers are required to provide such reasonable accommodations to a qualified individual with a disability unless a particular accommodation would impose an undue hardship on the employer.

The ADAAA, which went into effect on January 1, 2009, makes it easier for individuals to establish they have a disability within the meaning of the ADA. The EEOC's anticipated regulations will further clarify how courts are to interpret the meaning of disability. Regardless of what the EEOC says in its final rules, many more employees will now fall under the ADA's definition of disability, and employers will need to provide reasonable accommodations with greater frequency.

Though a thorough discussion of reasonable accommodations is beyond the scope of this column, I would like to highlight an interesting question: How much time off constitutes a reasonable accommodation for an injured or ill employee?

Recall that in order to be covered by the ADA, an individual must be qualified for the position in question. At what point is an employee who has been unable to come to work no longer qualified for the job? Like that of many other employment law questions, the answer seems to be "it depends."

As a starting point, employers should note that they are required to provide up to 12 weeks of unpaid leave for certain medical reasons under the Family and Medical Leave Act (FMLA). State laws also provide certain entitlements to medical leave. Once these entitlements have run out, what additional leave accommodations are required under federal law?

The EEOC has made it clear that employers must provide leave as a reasonable accommodation (unless doing so poses an undue hardship). However, the agency has also said that employers "have no obligation to provide leave of indefinite duration.." (see: EEOC 2008 Guidance: The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities ).

Based on their analysis of numerous court decisions, my colleagues Frank Alvarez and Michael Soltis observed, among other things, that courts have generally approached the issue from two perspectives: (1) would the leave fulfill its medical purpose? (i.e., would the employee be able to perform the essential functions of his or her job upon return to work); and (2) would the employee's return to work be relatively close in time? Thus, if an employee requests an additional month of leave and provides medical affirmations indicating that he or she will likely be able to return to work in one month's time, the request for additional leave presents a more compelling case than an employee who requests an additional two months of leave and presents no evidence that he or she will be able to work in the immediate future.

Given the lack of a bright-line rule to help employers determine how much time off to provide an injured or ill employee, employers should consider each situation independently and avoid leave policies that appear inflexible. For further reading on this topic, read the full article (PDF) by Frank Alvarez and Michael Soltis.