How Long is a 'Reasonable' Amount of Time?
Question: We have an employee who has been with us a long time and is generally great. About six months ago, she went out on disability leave to deal with a mental-health issue. She's been receiving treatment and therapy, but the situation isn't really improving. On a few occasions, she has mentioned wanting to come back to work and being excited to rejoin the company when she feels up to it. Unfortunately, her doctor just estimated that she could be out indefinitely and at the very least another 12 months! We are a mid-sized company and, while we may be able to accommodate her absence for a little while longer, her projects are languishing and her department can't keep making up the slack. How long is a "reasonable" amount of time for her to be out on leave during which we have to keep her job open for her? Is indefinite leave a "reasonable accommodation"?
Answer: Let's start with your first question: "How long is a 'reasonable' amount of time for her to be out on leave during which we have to keep her job open for her?"
Under the Americans with Disabilities Act, an employer (with 15 or more employees) must provide "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." 42 U.S.C. 12112(b)(5)(A). The EEOC has defined a reasonable accommodation as "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities" including modifying leave policies and extending leave to employees who otherwise wouldn't be eligible. EEOC Resource Document: Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016) (hereinafter "EEOC Resource Document"). In its most recent publication on leaves of absence under the ADA, the EEOC made clear that "an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer." Id.
An "undue hardship" is created where the provision of an accommodation causes an employer to undergo "significant difficulty or expense" relative to the resources and circumstances of the particular employer. 29 C.F.R. § 1630.2. The EEOC Resource Document has detailed the following factors that employers may consider when determining whether to provide leave:
* "The amount and/or length of leave required (for example, four months, three days per week, six days per month, four to six days of intermittent leave for one month, four to six days of intermittent leave each month for six months, leave required indefinitely, or leave without a specified or estimated end date);"
* "The frequency of the leave (for example, three days per week, three days per month, every Thursday);"
* "Whether there is any flexibility with respect to the days on which leave is taken (for example, whether treatment normally provided on a Monday could be provided on some other day during the week);"
* "Whether the need for intermittent leave on specific dates is predictable or unpredictable (for example, the specific day that an employee needs leave because of a seizure is unpredictable; intermittent leave to obtain chemotherapy is predictable);"
* "The impact of the employee's absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner (for example, only one coworker has the skills of the employee on leave and the job duties involved must be performed under a contract with a specific completion date, making it impossible for the employer to provide the amount of leave requested without over-burdening the coworker, failing to fulfill the contract, or incurring significant overtime costs); and
* "The impact on the employer's operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer."
Thus, whether a requested accommodation is reasonable or presents an undue hardship depends on the facts and attendant circumstances and the application of various federal, state and local disability laws. Indeed, a six-month leave of absence and leave extensions for an employee with a disability may be unreasonable accommodations in one case, while a one-year leave of absence may be reasonable in another. See Durrant v. Chem./Chase Bank/Manhattan Bank, N.A., No. 97 CIV. 1609 (LAK), 1999 WL 1328001, at *4 (S.D.N.Y. Dec. 3, 1999).
In all cases, once an employer is aware of the need for accommodation, that employer must engage with the employee in an interactive process, which is a collaborative effort to determine and carry out appropriate reasonable accommodations. This process includes a dialogue with the employee to ascertain the disabling condition's impact on the employee's ability to perform job duties. Where leave would cause an undue burden, an employer should explore alternative reasonable accommodations, including offering the employee a different, vacant position.
Now, on to your next question: "Is indefinite leave a 'reasonable accommodation' "?
Courts throughout the country and the EEOC generally agree that indefinite leave is not reasonable under the ADA. Nevertheless, an employer's inquiry should not stop there. Disability laws also exist at the state and local level and have slight variations that are worth noting. For example, based on a relatively recent decision in New York's highest state court, employers with operations in New York City should take particular caution when undergoing the reasonable accommodation analysis, even in situations where an employee requests indefinite leave.
In Romanello v. Intesa Sanpaolo, S.p.A, the New York Court of Appeals affirmed the dismissal of Mr. Romanello's New York State Human Rights Law ("NYSHRL") disability discrimination claim grounded upon an open-ended leave accommodation request, after recognizing that "[i]ndefinite leave is not considered a reasonable accommodation under the State HRL." 22 N.Y.3d 881, 884 (2013). but the Court of Appeals then reinstated Mr. Romanello's New York City Human Right Law disability claim after holding that the NYCHRL affords protections to employees greater than those provided by the NYSHRL. The Court further recognized that, unlike the NYSHRL, it is the employer's burden under the NYCHRL to "plead and prove that plaintiff could not perform his essential job function with an accommodation." Id. at 885.
This decision highlights the different obligations imposed upon employers by the NYCHRL, the NYSHRL and the ADA, and that, when faced with a request for a reasonable accommodation, each statute must be taken into consideration. Because of this, and because disability and accommodation issues are often tricky, employers should always consult with legal counsel experienced in this area and with the specific needs of the business when tackling these issues. At the very least however, employers should consider all accommodation requests carefully and promptly (with the assistance of legal counsel). Employers also should be familiar with the various requirements and burdens imposed by the ADA. Be aware of similar state or local disability laws in the places you do business; train supervisors about the accommodation process and encourage them not to "freelance" in the area but to instead speak with HR and legal. Employers should also engage in and thoroughly document the interactive process regarding requests for accommodation.
As with any employee-related decision, employers need to consider all of the facts surrounding an employee's request for a leave of absence -- indefinite or otherwise -- prior to making any final determination.
Keisha-Ann G. Gray is a partner in the Proskauer's Labor & Employment Department, resident of the New York office. Proskauer Associate Ebony Ray, also in the New York office, assisted with this article.