Question: Is unpaid time off from work for medical appointments and treatment a reasonable accommodation under the ADA?
Answer: It may be, but the answer must be determined on a case by case basis, to determine whether it is a reasonable accommodation that does not place an undue hardship on the employer.
Numerous courts have recognized that leave of absence for medical treatment may constitute a reasonable accommodation under the ADA. A leave of absence for an indefinite period of time, however, is not a reasonable accommodation, particularly where the employee presents no evidence of expected duration or a favorable prognosis.
The ADA prohibits employers from discriminating against “qualified individuals with a disability.” 42 U.S.C. § 12112(a). To establish a prima facie case under the ADA, a plaintiff must prove that (1) she is disabled within the meaning of the ADA; (2) she is qualified, with or without reasonable accommodation, to perform the job she held; and (3) she was terminated or discriminated against because of her disability.
Under the ADA, “a qualified individual with a disability” is a person “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). Thus, to be a “qualified individual” under the ADA, the plaintiff must have been able to perform the essential functions of her job, with or without a reasonable accommodation. The determination of whether an individual with a disability is “qualified” is made in two steps. 29 C.F.R. § 1630.2(m) app. First, a determination is made as to whether the individual satisfies the prerequisites for the position. Second, a determination is made as to whether or not the individual can perform the essential functions of the position, with or without a reasonable accommodation.
Under the ADA, “essential functions” are defined to include the “fundamental job duties” of a particular position. 29 C.F.R. § 1630.2(n)(1). Evidence of whether a certain function is “essential” includes, among other things: the employer’s judgment as to what functions of a job are essential; the amount of time spent on the job performing the particular function; the consequences of not requiring the job holder to perform the function; and the number of other employees available among whom the performance of a particular function may be distributed. 42 U.S.C. § 12111(8)(listing factors); 29 C.F.R. § 1630.2(n)(3) (same); Whether or not a particular function is essential is a factual determination made on a “case by case” basis. 29 C.F.R. 1630.2(n) app.
For most jobs, regular attendance at work is an essential function. See, e.g., Carr v. Reno, 306 U.S. App. D.C. 217, 23 F.3d 525, 529-30 (D.C. Cir. 1994)(construing Rehabilitation Act); Jackson v. Veterans Admin., 22 F.3d 277, 278-79 (11th Cir. 1994)(same). However, where a leave from work is at issue, whether attendance is an essential function of a particular job is “not the relevant inquiry.” Rascon v. U.S. West Communications, Inc., 143 F.3d 1324, 1333 (10th Cir. 1998). In Rascon, the Tenth Circuit stated that when leave was at issue, “the question of whether attendance is an essential function is equivalent to the question of what kind of leave policy the company has.” Id.
However, the Fourth Circuit Court of Appeals has made it clear, that the duty of reasonable accommodation does not encompass a responsibility to provide a disabled employee with alternative employment when the employee is unable to meet the demands of his present position. Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1995) citing Guillot v. Garrett , 970 F.2d 1320, 1326 (4th Cir. 1992).
The Fourth Circuit’s reasoning has been criticized as bad law. The Seventh Circuit explained the error in Gile v. United Airlines, 95 F.3d 492, 498 (7th Cir. 1996) “Those courts which have found that reassignment to a different position cannot be a reasonable accommodation under the ADA mistakenly rely upon preamendment Rehabilitation Act cases stating that proposition under the Rehabilitation Act. See Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1995) (citing Guillot, 970 F.2d at 1326); Cheatwood v. Roanoke Indus., 891 F. Supp. 1528, 1537 (N.D. Ala. 1995) (citing Myers, 50 F.3d at 284).
A number of courts have recognized that leave of absence for medical treatment may constitute a reasonable accommodation under the ADA. See Criado v. IBM Corp., 145 F.3d 437 (stating that leave may constitute reasonable accommodation); Cehrs v. Northeast Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 782 (6th Cir. 1998)(citing Criado); Rascon v. U.S. West Communications, Inc., 143 F.3d 1324, 1334 (10th Cir. 1998) (stating that “time for medical care or treatment may constitute a reasonable accommodation”); Shannon v. City of Phila., No. Civ.A.98-5277, 1999 U.S. Dist. LEXIS 18089, 1999 WL 1065210, at *5 (E.D. Pa. Nov. 23, 1999), (Dockery v. North Shore Med. Ctr., 909 F. Supp. 1550, 1560 (S.D. Fla. 1995)(recognizing that unpaid leave may constitute reasonable accommodation); Schmidt v. Safeway, Inc., 864 F. Supp. 991, 996 (D. Or. 1994)(reasonable accommodation may include leave of absence for treatment). The EEOC interpretive guidance to the ADA states that a reasonable accommodation could include “additional unpaid leave for necessary medical treatment.” 29 C.F.R. § 1630.2(o) app. Likewise, Department of Labor regulations announce that a reasonable accommodation may require an employer “to grant liberal time off or leave without pay when paid sick leave is exhausted and when the disability is of a nature that it is likely to respond to treatment of hospitalization.” 29 C.F.R. pt. 32, app. A(b). A leave for an “indefinite” period of time, however, is not a reasonable accommodation, particularly where the employee presents no evidence of the expected duration of the impairment and no indication of a favorable prognosis. See, e.g., Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995)(stating that reasonable accommodation does not require employer to wait indefinite period); Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 759-60 (5th Cir. 1996)(same); Hudson v. MCI Telecommunications Corp., 87 F.3d 1167, 1169 (10th Cir. 1996)(stating that indefinite leave with no indication of favorable prognosis was not reasonable accommodation); Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1188 (6th Cir. 1996)(observing that employer had no way of knowing when, or even if, employee would return to work).
The term “reasonable accommodation” is open-ended: the statues and regulations offer examples, but caution that the term is not limited to those examples. 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2(o); 29 C.F.R. § 1630.2(o) app. For example, the ADA lists a number of other “reasonable accommodations” that may enable the individual with a disability to perform the essential functions of his or her job, including:
(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
42 U.S.C. § 12111(9).
Whether a leave request is reasonable turns on the facts of the case. Criado, 145 F.3d at 443 (recognizing that “[a] leave of absence and leave extensions are reasonable accommodations in some circumstances”). Courts have held that a leave of five months for medical treatment was a reasonable accommodation. Rascon, 143 F.3d at 1334-35 (stating that five month leave of absence to attend treatment program was reasonable accommodation). Further, reasonable accommodation is a “continuing” duty and is not exhausted by one effort. See Ralph v. Lucent Tech., Inc., 135 F.3d 166, 172 (1st Cir. 1998)(finding that employer may be required to grant additional accommodations beyond 52-week leave with pay for employee who suffered mental breakdown.
To get to a jury, one must ask whether viewing the evidence in the light most favorable to plaintiff, the court would find that a reasonable jury could conclude that plaintiff’s request for periodic leave for medical appointments and treatment was a reasonable accommodation.
An employer is not required to provide an accommodation that is unreasonable or would impose an “undue hardship.” 42 U.S.C. § 12112(b)(5)(A). “Undue hardship” means an action that requires “significant difficulty or expense” when considered in light of the following factors:
(i) the nature and cost of the accommodation needed . . .;
(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the work force of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.
42 U.S.C. § 12111(10).
As to the issue of whether a particular accommodation is reasonable or an undue hardship, the plaintiff bears only the burden of identifying an accommodation, the costs of which, facially, do not clearly exceed its benefits. Walton v. Mental Health Ass’n, 168 F.3d 661, 670 (3d Cir. 1999). Following such a showing by the plaintiff, the burden shifts to the defendant to prove that the accommodation is unreasonable or that it creates an undue hardship. Id.
In mandating only those modifications that qualify as reasonable, Congress clearly meant to avoid placing employers in an untenable business position. Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995). An employer estimate ex ante the amount of paid leave per employee, per annum it can reasonably afford, and then plan its budget on that basis. Requiring paid leave in excess of an employee’s scheduled amount would unjustifiably upset the employer’s settled budgetary expectations, and thus cannot be considered a reasonable accommodation. Id. The interpretive guidelines for the ADA reinforce the conclusion that reasonable accommodation does not include unscheduled paid leave. See 29 C.F.R. § 1630.2(o) (Appendix) (“Other accommodations could include permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment.. . .”) (emphasis added).
The fact that certain accommodations may have been offered by the employer to some employees as a matter of good faith does not mean that they must be extended to all employees seeking accommodations as a matter of law. Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1995) citing Traynor v. Turnage, 485 U.S. 535, 549, 99 L. Ed. 2d 618, 108 S. Ct. 1372 (1988) (“There is nothing in the Rehabilitation Act that requires that any benefit extended to one category of handicapped persons also be extended to all other categories of handicapped persons.”). Moreover, such a regime would discourage employers from treating disabled employees in a spirit that exceeds the mandates of federal law. If an employer undertook extraordinary treatment in one case, the same level of accommodation would be legally required of it in all subsequent cases; in other words, a good deed would effectively ratchet up liability, and thus not go unpunished. See Vande Zande v. Wisconsin Dep’t of Admin., 44 F.3d 538, 545 (7th Cir. 1995). Discouraging discretionary accommodations would undermine Congress’ stated purpose of eradicating discrimination against disabled persons. See 42 U.S.C. § 12101(b). Accordingly, we do not accept the proposition that Myers is ipso facto entitled to the precise accommodations afforded other disabled County employees. Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1995)
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