Disability discrimination cases seem to be the flavor of the day. Given the flood of disability discrimination cases, how can employers know how much leave is reasonable? And when can an employer safely say, “this leave of absence conversation is over”?
Employees, like the fisherman’s wife in the Grimm brothers’ fairy tale, The Fisherman and His Wife, often ask for too much. Conversely, employers too often lack the patience of the fish in that tale.
Although a leave of absence can be a reasonable accommodation, an employer is not obligated to provide an employee with an indefinite leave of absence. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 455 (2002) (collecting cases). Rather, the employee must provide an estimated date when s/he can resume the essential duties in the “near future.” Robert v. Bd. of Cnty. Comm’rs of Brown Cnty., Kans., 691 F.3d 1211, 1218 (10th Cir. 2012).
But that is hardly a helpful template in determining when to say “yes” and when to say “no” to a specific leave request. That is because context matters to the amount of leave that will be deemed reasonable. Let’s start with a hypothesis that less than 6 months is almost never enough and that more than 18 months is almost always too much. That still leaves a full year at play. What matters in court in that spread?
In Epps v. City of Pine Lawn, 353 F.3d 588, 593, n. 5 (8th Cir. 2003), a six month leave was all that was required. Why? “Pine Lawn, a small municipality, could not reallocate Epps’s job duties among its small staff of fifteen to twenty-two police officers.” Conversely, in Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952 (2008), the failure to continue extending monthly leave beyond ten months required reversal of summary judgment to the employer. Why? Neiman Marcus is a huge retailer; Nadaf-Rahrov was a clothes-fitter; and, as a result, the context of a large employer with a less critical job warranted far more leave than for cops in Pine Lawn.
Context matters as much as time itself. Less time for small entities or for jobs where the pool of fill-ins is small and the skill sets limit the options for temporary replacements. More time for jobs with large numbers of incumbents to share the load of one missing colleague. It ain’t only about time but it is also about time. Decisions supporting employers who refused to allow even six months leave are as rare as magical talking fish who grant wishes.
The EEOC offers three examples that clarify how context matters in the process:
- An employer that allows X months of medical leave but then requires the employee either return to work or be terminated may need to make an exception to the leave policy for a disabled employee who needs X + 1 months of leave. Note, policies that provide a blanket cap on the number of months of leave employees may take are not looked favorably upon by the EEOC.
- An employer with the same X months of leave policy will not have to make an exception for an employee that will never be able to return to his position (with or without a reasonable accommodation) and is unable to provide information on whether/when he could return to an alternate job.
- After extending a leave of absence for an employee, repeatedly, an employer may request information from the employee’s health care provider regarding why the previous extensions were not sufficient and why the health care provider now believes the employee will be able to return to work on the most recent date provided. If the response from the health care provider is that the employee’s condition is unpredictable and no clear answer for a return to work date is possible, the employer could determine that the leave has become indefinite and poses an undue hardship.
Perhaps, asking how much is enough may be the wrong question because it implies a mathematical answer when there is none. That search for a mathematical answer may be the source of too many employer decisions that result in losses in court. There is, however, a trial lawyer trick: tell your grandmother and see if she frowns. Your grandmother might not frown over Pine Lawn’s decision but likely would upon hearing of Neiman Marcus’s. If you want to test market your judgment on what is a reasonable accommodation, ask a potential juror like your grandmother (or whoever read you Grimm Brothers’ tales in your childhood).