When the Americans with Disabilities Act Amendments Act (ADAAA) passed in 2008 it substantially changed the way employers have to deal with employees with disabilities. It enlarged definitions of disabilities and life functions and it put on employers the requirement of “interactive discussions”, but one thing it did not do was require employers to give an open-ended leave as a reasonable accommodation.
Six months is too long
A court case published at the end of August 2012 made it very clear that the court did not consider permanent leave, or at least a leave with an indeterminate end, to be a reasonable accommodation in the case of the plaintiff in this lawsuit. The court actually said “There are two limits on the bounds of reasonableness for a leave of absence. The first limit is clear: The employee must provide the employer an estimated date when she can resume her essential duties. Without an expected end date, an employer is unable to determine whether the temporary exemption is a reasonable one…..The second is durational. A leave request must assure an employer that an employee can perform the essential functions of her position in the “near future.” Although this court has not specified how near that future must be, the Eighth Circuit ruled in an analogous case that a six month leave request was too long to be a reasonable accommodation.”
No longer qualified
It was not just centered on the amount of leave, but on the fact that the employee was no longer qualified to perform the essential functions of the job, which in the case required on-site visits. Due to the employee’s disability she was unable to do these visits. For the period of the employee’s FMLA time her work place accommodated this and transferred these essential functions to other employees. Eventually this placed a burden on the office. The employee was claiming that since the office had already accommodated her that continued accommodation would be reasonable. The court disagreed. Thus, since she was not able to continue to perform the essential functions of her job she was no longer qualified for the job and it was reasonable for the company to terminate her employment.
ADAAA does not require job creation
Neither the ADA nor the ADAAA require an employer to create a job as a reasonable accommodation. If there is a job already in existence that the employee would be qualified to do then putting them in the job might be reasonable as long as it did not require that another employee is displaced. Firing someone else is also not a reasonable accommodation. Attorney Eric B. Meyer says “So, if an employee requests an indefinite leave from work or similar reprieve from essential job functions, consider reassignment to a vacant position (assuming one exists) that will allow that employee to return to work. Another option would be to acquire or modify equipment, if doing so would not cause undue burden.”
Key action points
There are several points that you can take away from this post:
- If an employee approaches you claiming a disability you must engage in an interactive discussion with them that is documented to show the extent to which you discussed with them their situation;
- Seriously consider their request for accommodation and whether it is reasonable or not, with all the areas of costs, disruption, structure or time are considered; and
- If they are asking for a permanent relief of duty from performing an essential function you can be pretty safe in telling them “sorry.”
For further information see the Americans with Disabilities Act Amendments Act (ADAAA) Fact Sheet.