Quirky Question #261, When will our employee return?
We’re a large company with offices in many locations, including in California, Minnesota, Washington and New York City. We often have disabled employees provide doctors’ notes that say they are unable to work, but that do not provide an expected date the employee will be cleared medically to return. When we ask these individuals for a return date, they usually say they don’t know or that their doctor told them they need to be off work for “as long as necessary.” We have no idea whether this means one week or one year. Do we have to grant employees leave if there is no end in sight? It makes planning on our end very difficult.
Answer: By Scott Selix and Laura Lestrade
Several years ago, we responded to a similar question concerning whether an employer is required to allow an employee to take “indefinite” leave under the Americans with Disabilities Act (ADA). We concluded based on then-recent case law from the federal appellate court with jurisdiction over Minnesota and other states that the ADA did not require an employer to grant indefinite leave to a disabled employee. You can find that question and response here. Since that time, several additional federal courts have agreed with the Eighth Circuit and held that an employee who requires indefinite leave is not a qualified person with a disability under the ADA. Thus, under federal law, it remains the case that employers need not grant indefinite leave as a reasonable accommodation to a disabled employee.
Our prior answer specifically analyzed only the ADA—the federal law concerning disability discrimination. Many states and local municipalities have enacted their own disability discrimination laws, which may or may not be consistent with the ADA. When a particular jurisdiction is governed by multiple layers of statutes or regulations, an employer must conform its behavior to the statute or regulation that offers the most protection to the employee. Thus, your question regarding indefinite disability leave may be answered differently depending on which of your offices is involved.
The California Fair Employment and Housing Act (FEHA) is a comprehensive civil rights statute which, among other things, prohibits employment discrimination against individuals with disabilities. In many respects, the FEHA provides wider disability discrimination protection than the ADA. For instance, the FEHA’s definition of “disability” is broader than the ADA’s. The ADA defines a disability as a “physical or mental impairment that substantially limits one or more major life activities.” The FEHA, however, defines a disability as a physical or mental impairment that makes a major life activity “difficult.” California courts interpret the FEHA to allow certain employees to be eligible for disability discrimination protection under the FEHA that would not qualify under the ADA. But on the issue of indefinite leave, the FEHA and the ADA are consistent. A January 2015 decision from a federal California court confirms previous California court decisions holding that an “indefinite leave of absence is not a reasonable accommodation under the ADA or the FEHA.” Dezham v. Macy’s West Stores, Inc.
In Minnesota, the Minnesota Human Rights Act (MHRA) governs disability discrimination. In multiple recent “indefinite leave” cases involving claims of disability discrimination brought under both the ADA and the MHRA, federal courts located in Minnesota have summarily dismissed both claims, holding that an indefinite leave of absence is never a reasonable accommodation.
The State of Washington has adopted the Washington Law Against Discrimination (WLAD). Like the FEHA, the WLAD provides significantly broader disability protection than the ADA. For instance, the WLAD’s definition of a disability is substantially broader than the ADA’s, and includes among its covered disabilities temporary ailments, which are not covered under the ADA. But like courts in California and Minnesota, Washington courts consistently hold that the WLAD does not require indefinite leave as a reasonable accommodation.
The New York State Human Rights Law (New York State HRL) prohibits disability discrimination in the State of New York. The New York City Human Rights Law (New York City HRL) prohibits disability discrimination in New York City, and provides broader disability discrimination protection than does the New York State HRL. In an October 2013 decision, New York’s highest state court in Romanello v. Intesa Sanpaolo ruled that although the New York State HRL does not include indefinite leave as a reasonable accommodation, the New York City HRL may require indefinite leave in certain instances. The difference between the New York City HRL and the New York State HRL is the New York City HRL places the burden on the employer to prove that the employee “could not, with reasonable accommodation, satisfy the essential requisites of the job.” In almost every other disability discrimination law (e.g., the ADA, the New York State HRL, the FEHA, the MHRA, and the WLAD), the burden is on the employee to show that she could perform the essential requirements of the job with or without reasonable accommodations. In addition, the New York City HRL places the burden on the employer to show that the requested accommodations would pose an undue hardship to the employer. The placement on the employer of both the burden to show the employee cannot do the job with an accommodation and the burden to show an accommodation would cause an undue hardship means an employer must provide an accommodation, including indefinite leave, unless the employer can show such leave would cause undue hardship or would not allow the employee to perform the essential job functions. Put more simply, a New York City employer who cannot satisfy either of those burdens must provide indefinite leave as a reasonable accommodation, unless there is an alternative accommodation that would allow the employee to perform the essential functions of the job.
Length of Leave
At this point, non-New York City employers might also be wondering what amount of time falls at the outer bounds of reasonableness. While indefinite leave is not a reasonable accommodation (except possibly in New York City), the ADA and most state anti-discrimination laws undoubtedly require an employer to grant disability leave in certain situations. What if instead of requesting indefinite leave, an employee asks for one year of leave with the hope that he or she will be able to return to work sometime within that one-year period? Or six months? Must the employer grant leave for such a long period because the employee technically didn’t request indefinite leave? Again, the answer may vary by jurisdiction, but by and large the answer is, probably not.
In a Tenth Circuit Court of Appeals case, the plaintiff, who had been on leave from her position as a college professor for six months, was terminated after she requested her employer extend her leave another six months. The court rejected her disability discrimination claim, holding both that a six-month leave of absence is not a reasonable accommodation and that an employee who is unable to work for six months is not capable of performing the essential functions of the job. In so holding, the Tenth Circuit noted the same conclusion had been reached by the Equal Employment Opportunity Commission (EEOC) (“six months is beyond a ‘reasonable amount of time’”) and the Eighth Circuit Court of Appeals in Epps v. City of Pine Lawn. State courts generally have reached the same conclusions under state anti-discrimination laws. Thus, in most instances an employer need not grant requests for disability leave of six months or longer.
Unfortunately, for requests for leave less than six months, it’s much less clear. Remember that disabled employees of large employers (50 employees or more) eligible for leave under the Family Medical Leave Act (FMLA) are entitled to twelve weeks of leave and that certain employees may be entitled to additional leave under state law. Beyond that, employers should consider each request for disability leave on a case-by-case basis, determining whether the requested leave is a reasonable accommodation and whether, if granted, it would cause the employer an undue hardship.