The most frequently requested accommodation by a disabled employee continues to be job-protected time away from work for treatment or recovery. Occasionally, employers will encounter an employee who objects to being required to use their paid time off concurrent with such leave. While Family and Medical Leave Act rules explain when paid leave can be substituted for unpaid leave, the Americans with Disabilities Act is silent on this issue.

Last week, the Eleventh Circuit Court of Appeals (which includes Georgia) found that an employer who declined an employee’s request to preserve her paid leave did not fail to accommodate that individual under the ADA. In Kingsolver v. U.S. Attorney General, the plaintiff was a federal government employee who requested leave to deal with mental health and cardiac issues. The employer agreed, and informed the plaintiff that her accumulated paid leave would be used during her absence. She objected on the basis that she wanted to preserve her paid leave balance in the event of a family emergency. The employer declined this request, and she eventually filed suit claiming, among other grounds, failure to accommodate her request for unpaid leave.

The Eleventh Circuit affirmed the district court’s grant of summary judgment to the defendant. The court concluded that the employer offered an effective accommodation of paid leave which the employee declined. The request for unpaid leave was not related to her medical condition, and declining this request did not constitute a failure to provide an ADA accommodation. The employee’s preferences are not relevant to this determination.

Most employers are wary about allowing an employee to take extended unpaid leave for medical reasons and then to have that employee absent for additional extended paid time off. In some situations, companies will allow the employee to preserve a reasonable amount of such paid time, but this decision, if consistently applied, is up to the employer’s discretion.

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