How Long is Too Long? The Continuing Saga of Leave as an ADA Accommodation

by Armando Rodriguez, Esq - Product Compliance Counsel Compliance And Legal Department

& Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,

September 17, 2020


Back in July, we celebrated 30 years of the Americans with Disabilities Act of 1990 (ADA). Yet employers still struggle with how long a leave of absence is reasonable as an accommodation.  Two recent employee-friendly cases from the 9th Circuit Court of Appeals teach us that, in the 9th Circuit, at least, there may not be a limit.  Today, we’re going to take a look at these two cases, review what the Equal Employment Opportunity Commission (EEOC) and other courts have said on this issue, and address lessons that ALL employers, wherever located, can take away from the 9th Circuit decisions.

First, some basics

Title I of the ADA prohibits job discrimination on the basis of disability. Specifically, the law prohibits

“Not making 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.” [Emphasis added.]

So we have two elements here that employers must consider when an employee requests an accommodation:  Is it “reasonable,” and will it impose an undue hardship on the employer? 

The ADA defines reasonable accommodation as “making existing facilities used by employees readily accessible to and usable by individuals with disabilities;” providing examples such as job restructuring, part-time or modified work schedules, and acquisition or modification of equipment or devices, just to name a few. Out of the 3,351 words in Title I of the ADA, “leave” is not used once.  Yet the EEOC and the courts that have addressed the issue find that as a general principle, leave of absence can be a reasonable accommodation.  As we’ll see below, the devil is in the details – how long is reasonable?  In plain English, how long is too long?  Seems that one factor is, in what federal court district do you have employees?

As to undue hardship, this is defined by the ADA as significant difficulty or expense. Factors to consider include the nature and net cost of the accommodation, resources of the facility involved, overall financial resources of the employer, the type of operation or operations of the employer, and the impact of the accommodation upon the operation.  It is very hard to establish undue hardship (it takes a lot more than just some expense or some difficulty) and so if employers are left with undue hardship as the only possible reason to deny leave of absence, it’s a tough row to hoe. 


The 9th Circuit:  Extended leave is not per se “unreasonable”

Back to those recent 9th Circuit decisions that appear to widen the scope of leave as a reasonable accommodation. WAY back in 2019 B.C. (Before COVID), the 9th Circuit held in Ruiz v. ParadigmWorks Group, Inc., that an additional 5 weeks for a broken ankle beyond her initial 12 weeks of FMLA was a reasonable accommodation since the extension was for a finite period and the injury was the type of injury the employee can expect to recover from in the foreseeable future. Likewise, in Kachur v. NAV-LVH, LLC, the court held that a request for an additional 4 weeks of leave, after already taking 16 weeks of leave was, on its face, reasonable. Here, the employee had undergone knee surgery and had exhausted his FMLA entitlement. He had already taken an additional 4 weeks beyond his FMLA entitlement of 12 weeks, and had requested an additional 4 weeks when his employer denied the request and terminated employment. The court held that the employee’s frequent updates could be understood as estimates of his expected return to work. Thus, in each case, the court found the leave extension request was reasonable and the employer was left with that nasty undue hardship argument as its only defense to not giving the employee extra leave.  Not sure what it is about the 9th Circuit . . .

The 9th Circuit handles appeals of decisions of the federal district courts of Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and of course, California. Never mind, I think I figured out what it is about the 9th Circuit.

Good news from other courts and the EEOC (well,  sort of)

Courts other than the 9th Circuit have recognized durational limits on what constitutes a “reasonable” leave of absence.  For example, in 2017, the 7th Circuit Court of Appeals issued an employer-friendly decision in Severson v. Heartland Woodcraft, Inc.  Although the court acknowledged that a brief period of leave to deal with a medical condition could be a reasonable accommodation, it ruled that another 2-3 months after exhaustion of FMLA was not reasonable.   The court underlined that an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.  If “employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute—in effect, an open-ended extension of the FMLA.”

Similarly, in Hwang v. Kansas State University, the 10th Circuit held in 2014 that a 6-month leave of absence was not a reasonable accommodation. So in these circuits, at least, the employer may have an argument that a leave of absence or extension request of significant duration, even if for a finite time, may be unreasonable.  For more on these two cases, check out this past post.

On a related note, in 2016, the EEOC provided guidance on employer-provided leave and the ADA (a must-read document for employers struggling with this issue). The EEOC indicated that “indefinite leave – meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship, and so does not have to be provided as a reasonable accommodation.”  However, the EEOC supported the plaintiff in the Severson case and argued that additional leave requested was a reasonable accommodation. 

Pings for Employees

When looking at these decisions together, perhaps there is some cohesiveness.  At least, we can see a few common lessons that all employers should keep in mind.

  • There’s no “one size fits all”: The courts will look at the particulars of each scenario to make their determination with regard to whether an accommodation is reasonable. Consider every leave request, request for extension of leave, or series of requests individually, each time, for reasonableness and undue hardship.That’s not bad advice for employers even outside of the 9th Circuit.
  • Consider the nature of the impairment: Is this something that you can reasonably expect recovery from? This may cast a more “reasonable” light on the employee’s leave request.Contrast the broken ankle and knee surgery in Ruiz and Kachur with leave needed due to a condition with a less-certain prognosis for near-term recovery.
  • What’s past is past: When making its determination of reasonableness, it appears the 9th Circuit gave little weight to the leave already taken, focusing on the specific pending leave request in isolation instead of the total leave duration. The EEOC, on the other hand, in its guide on employer-provided leave and the ADA, indicated that leave already taken “pursuant to a workers' compensation program, the FMLA (or similar state or local leave law), an employer's leave program, or leave provided as a reasonable accommodation” may be considered when assessing undue hardship.
  • Be generous with your employees.If you find yourself in a gray area as to whether a requested leave or extension is of an unreasonable duration, try to work it out with the employee rather than deny on shaky grounds or rely on an undue hardship defense.The costs of litigation can quickly outweigh the cost of providing more leave.Also, consider alternatives to more leave – can the employee return to work with an on-the-job accommodation(s) such as temporary reassignment, modification of nonessential duties, or assistive equipment?But consult your employment law attorney in any specific case – the facts really matter!
  • Read between the lines: In both the 2019 and 2020 decisions, the additional leave requests were for a finite period of time and the 9th Circuit appeared to give weight to the employees’ frequent updates, indicating that the employers should have inferred return to work plans. The court appears to make a distinction between a series of specific extensions and an indefinite leave with no known or predicted return to work date.The court pointed out that it has never held that leave of any specific duration is in and of itself unreasonable (perhaps thinking of Severson and Hwang without citing them).

Matrix Can Help

Be it modifying work schedules, job restructuring, or leave as an accommodation, our team of ADA Specialists are ready to help you and your employees navigate through the ADA process. While the final decision whether to accommodate lies with you, our team manages claim intake, assesses the medical obtain, maintains records, and facilitates the interactive process, as well as any follow up that may be needed. For more information about our ADA product, please contact your Matrix or Reliance Standard Life Insurance account manager, or reach us at [email protected].