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Indefinite Leave Not Required Accommodation under ADA

    Client Alerts
  • October 17, 2008

In the early 1990s, the Equal Employment Opportunity Commission took the administrative position that employers could be required to grant employees open-ended leaves of absence under the Americans with Disabilities Act.  The EEOC considered indefinite leaves to be a form of reasonable accommodation in the absence of the employer demonstrating an undue hardship.  Since that time, a number of federal courts have rejected this reasoning, finding indefinite leaves to be per se unreasonable.  Other courts, (including the Fourth Circuit), concluded that indefinite leaves are not really a form of accommodation because they are not designed to get the employee back to work.

Earlier this month as reported in EmployNews, the EEOC issued a guidance on performance and conduct standards under the ADA.  This guidance appears to change the agency’s position that indefinite leave can be considered a reasonable accommodation under any circumstances.

A recent Tenth Circuit Court of Appeals decision reinforces this growing consensus on the treatment of indefinite leaves under the ADA.  In Dixon-Thomas v. Oklahoma County Bd. of County Comm’rs, the plaintiff was absent from work for three years due to a Workers’ Compensation injury.  When terminated, she sued, alleging disability discrimination under the ADA.  The Tenth Circuit affirmed summary judgment for the employer, concluding that under no conceivable circumstances could the County be required to keep a job open for three years or more as a form of accommodation under the ADA.  As a matter of law, this requirement would place an undue hardship on the employer.

Employers faced with employee medical leaves of absence should always request medical information from the physician estimating the length of the requested leave.  If the physician is unable to provide an anticipated date of return to work, the employer should be able to deny the leave as a required ADA accommodation. The employer may have to provide FMLA leave, or leave mandated by state Workers’ Compensation laws.  However, the ADA will not require the employer to provide an open-ended job protected leave of absence from work.