Leave As a Reasonable Accommodation

Leave As a Reasonable ADA Accommodation

Under the ADA (and now as the amended ADAAA), any covered employee is entitled to a reasonable accommodation to permit him to work with his disability. Specifically, “it is unlawful to refuse to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. ' 12112(b)(5)(A).

In order to establish a prima facie case of reasonable accommodation discrimination under the ADA, the plaintiff must establish that: 1) he or she is a person with a disability under the statute; 2) an employer subject to the statute had notice of his or her disability; 3) he or she could perform the essential functions of the job at issue with a reasonable accommodation; and 4) the employer refused to make such accommodation. The plaintiff bears the initial burden of proving that an accommodation exists that permits her to perform the job's essential functions. In turn, an employer can avoid a finding of liability if it can meet its burden to establish that it would have suffered an “undue hardship” were the accommodation granted.

Despite a near consensus among the circuits in support of leave as an accommodation, the circuits yet to endorse it appear to struggle with the idea that providing healing time away from work may be all that is required for an employee to return to work in the immediate future. For example, the Second Circuit has opined that “the idea of unpaid leave of absence as a reasonable accommodation presents a troublesome problem, partly because of the oxymoronic anomaly it harbors-the idea that allowing a disabled employee to leave a job allows him to perform that job's functions ' .” Graves I, 457 F.3d at 185.

Yet, as the majority of circuits have already directly or implicitly recognized, disabled employees' rights to a reasonable “'accommodation' requires the employer to treat a[] employee[s] with a disability differently, i.e., preferentially ' [t]he fact that the difference in treatment violates an employer's disability-neutral rule cannot by itself place the accommodation beyond the Act's potential reach.” U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002).

Moreover, even before the ADAAA and its recently promulgated regulations, those circuit and district courts accepting leave as a reasonable accommodation found strong support in the plain text of the statute. Under the ADA (and now the ADAAA), reasonable accommodations may include “job restructuring, part-time or modified work schedules ' and other similar accommodations for individuals with disabilities.” 42 U.S.C. ' 12111(9)(B) (emphasis added). Similarly, the EEOC's interpretive guidance noted that a reasonable accommodation included “permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment.” 29 C.F.R. Pt. ' 1630.2(o), App. (emphasis added).

The Drawback

Unfortunately, in the absence of explicit approval of leave as an accommodation in some circuits, employees in those regions cannot confidently seek enforcement of their ADAAA rights. Prior to the ADAAA amendments, some courts accepted employer challenges to requests for short periods of leave on the ground that the employee's disability was not chronic and, therefore, not a disability under the ADA. Indeed, the EEOC's previous interpretive guidance actually supported this view, noting that “temporary non-chronic impairments of short duration with little or no long term or permanent impact, are usually not disabilities.” 29 C.F.R. ' Part 1630.2(j) app. (amended effective May 24, 2011).

At the same time, some courts accepted employer arguments that employees with more profound injuries of longer duration (albeit non-permanent duration) were not entitled to leave as an accommodation because their requests could not include a date certain for their return to work in the near future. Importantly, even circuits that have accepted the principle of leave generally agree that requests for indefinite undefined leave, i.e., requests without at least an estimated return date, cannot be reasonable accommodations.

The ADAAA Paves the Way For Universal Acceptance of Leave As a Reasonable
Accommodation

The ADAAA and its regulations provide additional support for the remaining circuits to embrace leave as an accommodation. First, the ADAAA explicitly increases the general breadth of ADA protections: “[t]he definition of disability shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” Pub.L. No. 110'325, ' 3(a), 122 Stat. at 3555. This clarification should help neutralize the objections of some courts that employees seeking leave were not covered because their injuries were not severe enough.

Second, the ADAAA's new regulations clarify that the “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.” 29 C.F.R. ' 1630.2(j)(1)(ix). This marks a significant departure from the prior language, which stated that the “temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities” (although the guidance notes duration is still “one factor that is relevant”). To underscore the point, the EEOC's interpretative guidance states that “if an individual has a[n] ' impairment ' for several months ' [he is] covered under the first prong of the definition of disability.” 29 C.F.R. ' Part 1630.2(j)(1)(ix), App. These changes and additions should now make clear that the ADAAA is also geared toward, and protective of, employees seeking reasonable accommodations for the short-term but serious conditions requiring healing time that brief periods of unpaid leave are particularly well-suited to address.

Similarly, the ADAAA's regulations clarify that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active,” further reinforcing the appropriateness of leave for periods of short duration for conditions with only short periods of activity. 29 C.F.R. ' 1630.2(j)(1)(vii). Were that message not already clear, the interpretive guidance notes this provision “is intended to reject the reasoning of court decisions concluding that certain individuals with certain conditions ' were not protected by the ADA because their conditions were episodic or intermittent.” 29 C.F.R. ' Part 1630.2(j)(1)(vii), App. (“It is thus expected that individuals with impairments that are episodic or in remission ' will be able to establish coverage if, when active, the impairment or the manner in which it manifests ' substantially limits a major life activity.”).

Pregnant Women: An Ideal Test Case

As noted above, plaintiffs well-suited to establish leave as a reasonable accommodation under the ADAAA are women suffering from temporary disabilities caused by difficult pregnancies. These plaintiffs' requests for leave have the distinct advantage of being inherently time-bound. Pregnancy-related disabilities almost always end with, or shortly after, the relevant pregnancy. Such employees can therefore provide reasonably certain dates by which they can return ' i.e., necessarily within less than nine months. In fact, where these employees already qualified for three months of FMLA leave, the request for additional leave under the ADAAA will usually only be for a few supplemental months, providing particularly compelling fact patterns to the circuit courts still considering the use of leave as a reasonable accommodation.

Conveniently, the EEOC's updated regulations note that, contrary to many previous decisions in some circuits, “a pregnancy-related impairment that substantially limits a major life activity is a disability.” 29 C.F.R. ' Part 1630.2(h), App. As a result, far more than before the ADAAA, pregnant employees are now particularly strategically positioned to obtain explicit acceptance of leave as a reasonable accommodation. The EEOC also appears to be finalizing supplemental guidance regarding leave as a reasonable accommodation that may further assist efforts to bring the remaining circuits in line with the majority.

Conclusion

The circuits yet to embrace leave as an accommodation are currently in lonely company. Their failure to accept this right is, in simple terms, a failure to accept that the Supreme Court meant what it said when it instructed that an “'accommodation' requires the employer to treat an employee with a disability differently, i.e., preferentially.” Barnett, 535 U.S. at 397.

With the passage of the ADAA, effective Jan. 1, 2009, and the promulgation of its regulations, effective May 24, 2011 (with retroactive application from the earlier date), the time has come for the minority of circuits to join the majority, and explicitly hold that non-indefinite unpaid leave is a reasonable accommodation under the ADAAA. As discussed in more detail below, cases prosecuted by women with difficult pregnancies would be particularly compelling impact cases to push the remaining circuits to explicitly accept non-indefinite leave as a reasonable accommodation.

“Most ' circuits and the Equal Employment Opportunity Commission [EEOC] have concluded that, in some circumstances, an unpaid leave of absence can be a reasonable accommodation under the ADA.” Graves v. Finch Pruyn & Co., Inc. (“Graves I“), 457 F.3d 181, 185 (2d Cir. 2006). The circuits that have accepted leave as a reasonable accommodation currently include the First, Third, Fourth (decided under Rehabilitation Act), Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits, and to an extent the D.C. Circuit.

Nevertheless, several circuits have still “never expressly held that leaves of absence from an employee's job taken in order to recover from the employee's disability are 'reasonable accommodations' under the ADA.” Graves v. Finch Pruyn & Co., Inc. (“Graves II“), 353 Fed. Appx. 558, at *2 (2d Cir. 2009). These circuits include the Second, Fifth, and Eight Circuits. While not ruling out the possibility, these circuits have at best hedged the question or not clearly confirmed their approval (although Second Circuit district courts generally assume it is available based on Second Circuit jurisprudence). See id.; Amsel v. Texas Water Dev. Bd. , 464 Fed. Appx. 395, 400 (5th Cir. 2012); Rogers v. Int'l Marine Terminals, Inc ., 87 F.3d 755, 759-60 (5th Cir. 1996); Browning v. Liberty Mut. Ins. Co. , 178 F.3d 1043, 1049 (8th Cir. 1999); but see also Brannon v. Luco Mop Co. , 521 F.3d 843, 849 (8th Cir. 2008) (going only so far as to note that “allowing a medical leave of absence might , in some circumstances ' be a reasonable accommodation”) (emphasis added).

Leave As a Reasonable ADA Accommodation

Under the ADA (and now as the amended ADAAA), any covered employee is entitled to a reasonable accommodation to permit him to work with his disability. Specifically, “it is unlawful to refuse to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. ' 12112(b)(5)(A).

In order to establish a prima facie case of reasonable accommodation discrimination under the ADA, the plaintiff must establish that: 1) he or she is a person with a disability under the statute; 2) an employer subject to the statute had notice of his or her disability; 3) he or she could perform the essential functions of the job at issue with a reasonable accommodation; and 4) the employer refused to make such accommodation. The plaintiff bears the initial burden of proving that an accommodation exists that permits her to perform the job's essential functions. In turn, an employer can avoid a finding of liability if it can meet its burden to establish that it would have suffered an “undue hardship” were the accommodation granted.

Despite a near consensus among the circuits in support of leave as an accommodation, the circuits yet to endorse it appear to struggle with the idea that providing healing time away from work may be all that is required for an employee to return to work in the immediate future. For example, the Second Circuit has opined that “the idea of unpaid leave of absence as a reasonable accommodation presents a troublesome problem, partly because of the oxymoronic anomaly it harbors-the idea that allowing a disabled employee to leave a job allows him to perform that job's functions ' .” Graves I, 457 F.3d at 185.

Yet, as the majority of circuits have already directly or implicitly recognized, disabled employees' rights to a reasonable “'accommodation' requires the employer to treat a[] employee[s] with a disability differently, i.e ., preferentially ' [t]he fact that the difference in treatment violates an employer's disability-neutral rule cannot by itself place the accommodation beyond the Act's potential reach.” U.S. Airways, Inc. v. Barnett , 535 U.S. 391, 397 (2002).

Moreover, even before the ADAAA and its recently promulgated regulations, those circuit and district courts accepting leave as a reasonable accommodation found strong support in the plain text of the statute. Under the ADA (and now the ADAAA), reasonable accommodations may include “job restructuring, part-time or modified work schedules ' and other similar accommodations for individuals with disabilities.” 42 U.S.C. ' 12111(9)(B) (emphasis added). Similarly, the EEOC's interpretive guidance noted that a reasonable accommodation included “permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment.” 29 C.F.R. Pt. ' 1630.2(o), App. (emphasis added).

The Drawback

Unfortunately, in the absence of explicit approval of leave as an accommodation in some circuits, employees in those regions cannot confidently seek enforcement of their ADAAA rights. Prior to the ADAAA amendments, some courts accepted employer challenges to requests for short periods of leave on the ground that the employee's disability was not chronic and, therefore, not a disability under the ADA. Indeed, the EEOC's previous interpretive guidance actually supported this view, noting that “temporary non-chronic impairments of short duration with little or no long term or permanent impact, are usually not disabilities.” 29 C.F.R. ' Part 1630.2(j) app. (amended effective May 24, 2011).

At the same time, some courts accepted employer arguments that employees with more profound injuries of longer duration (albeit non-permanent duration) were not entitled to leave as an accommodation because their requests could not include a date certain for their return to work in the near future. Importantly, even circuits that have accepted the principle of leave generally agree that requests for indefinite undefined leave, i.e., requests without at least an estimated return date, cannot be reasonable accommodations.

The ADAAA Paves the Way For Universal Acceptance of Leave As a Reasonable
Accommodation

The ADAAA and its regulations provide additional support for the remaining circuits to embrace leave as an accommodation. First, the ADAAA explicitly increases the general breadth of ADA protections: “[t]he definition of disability shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” Pub.L. No. 110'325, ' 3(a), 122 Stat. at 3555. This clarification should help neutralize the objections of some courts that employees seeking leave were not covered because their injuries were not severe enough.

Second, the ADAAA's new regulations clarify that the “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.” 29 C.F.R. ' 1630.2(j)(1)(ix). This marks a significant departure from the prior language, which stated that the “temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities” (although the guidance notes duration is still “one factor that is relevant”). To underscore the point, the EEOC's interpretative guidance states that “if an individual has a[n] ' impairment ' for several months ' [he is] covered under the first prong of the definition of disability.” 29 C.F.R. ' Part 1630.2(j)(1)(ix), App. These changes and additions should now make clear that the ADAAA is also geared toward, and protective of, employees seeking reasonable accommodations for the short-term but serious conditions requiring healing time that brief periods of unpaid leave are particularly well-suited to address.

Similarly, the ADAAA's regulations clarify that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active,” further reinforcing the appropriateness of leave for periods of short duration for conditions with only short periods of activity. 29 C.F.R. ' 1630.2(j)(1)(vii). Were that message not already clear, the interpretive guidance notes this provision “is intended to reject the reasoning of court decisions concluding that certain individuals with certain conditions ' were not protected by the ADA because their conditions were episodic or intermittent.” 29 C.F.R. ' Part 1630.2(j)(1)(vii), App. (“It is thus expected that individuals with impairments that are episodic or in remission ' will be able to establish coverage if, when active, the impairment or the manner in which it manifests ' substantially limits a major life activity.”).

Pregnant Women: An Ideal Test Case

As noted above, plaintiffs well-suited to establish leave as a reasonable accommodation under the ADAAA are women suffering from temporary disabilities caused by difficult pregnancies. These plaintiffs' requests for leave have the distinct advantage of being inherently time-bound. Pregnancy-related disabilities almost always end with, or shortly after, the relevant pregnancy. Such employees can therefore provide reasonably certain dates by which they can return ' i.e., necessarily within less than nine months. In fact, where these employees already qualified for three months of FMLA leave, the request for additional leave under the ADAAA will usually only be for a few supplemental months, providing particularly compelling fact patterns to the circuit courts still considering the use of leave as a reasonable accommodation.

Conveniently, the EEOC's updated regulations note that, contrary to many previous decisions in some circuits, “a pregnancy-related impairment that substantially limits a major life activity is a disability.” 29 C.F.R. ' Part 1630.2(h), App. As a result, far more than before the ADAAA, pregnant employees are now particularly strategically positioned to obtain explicit acceptance of leave as a reasonable accommodation. The EEOC also appears to be finalizing supplemental guidance regarding leave as a reasonable accommodation that may further assist efforts to bring the remaining circuits in line with the majority.

Conclusion

The circuits yet to embrace leave as an accommodation are currently in lonely company. Their failure to accept this right is, in simple terms, a failure to accept that the Supreme Court meant what it said when it instructed that an “'accommodation' requires the employer to treat an employee with a disability differently, i.e., preferentially.” Barnett, 535 U.S. at 397.