When is a second request for indefinite leave required by the Americans With Disabilities Act (“ADA”)? What if the employee can perform most of the essential functions of the job while on indefinite leave, but can not provide a reasonable estimate of a return date when he/she can eventually perform allof the essential functions of the job?
In Robert v. Board of County Commissioner of Brown County, the Tenth Circuit Court of Appeals found that an employee on leave must provide a reasonable estimate of when she will be able to return to duty, performing all essential functions, in order for a leave of absence to be a reasonable accommodation under the ADA. Employers have no obligation to provide leave of an indefinite duration if there is not a realistic prospect that the employee will return to performing all the essential functions of her position in a reasonable time.
As an Adult Intensive Supervision Officer for the County, Catherine Robert needed to visit offenders at their homes or in jail, attend hearings, and supervise drug testing. In April of 2004, Robert had surgery for sacroiliac joint dysfunction. In the weeks preceding her surgery and during her recovery, Robert was allowed to work from home while other employees visited her offenders at their homes or in jail, and supervised her drug screenings. Robert returned to working from the office eventually and resumed all of the essential functions of her position.
In November 2005, Robert fell down the stairs at work and again needed surgery for her joint dysfunction. After exhausting her sick and vacation leave and FMLA leave during her recovery period, she requested additional time to work from home, but could not provide a date for a return to work.
The court recognized two limits on the “reasonableness” of leave as an accommodation. First, the employee must provide an estimated return date when essential job duties can be resumed, because an employer cannot assess whether a temporary exemption from these duties is reasonable without an end date to the leave. Second, there is a durational limit, namely that “a leave request must assure an employer than an employee can perform the essential functions of her position ‘in the near future’”.
Robert’s leave request failed the first limit because she could not identify an anticipated return date.
The Roberts case is an all too familiar fact pattern for employers. The employee can perform most of the essential functions of the job while on leave, so the employer works with employee and sets a precedent for what is a reasonable accommodation. Then a second request is made for the same conditions of leave, but the leave requested is now indefinite.
Employers are not stuck offering an endless succession of indefinite leaves under the ADA.
However, in denying a second request for leave despite a precedent of leave, prudent employers should document a second careful review of all of the facts:
  • What are the conditions of the requested leave?
  • When is the anticipated return to work?
  • What are the essential functions of the position?
  • Will working from home allow the employee to perform some (or all) of the job’s essential functions?
  • Will a temporary leave of absence permit the employee eventually to return to work to perform all essential functions of the job?
  • Is the requested duration of leave reasonable in light of the employee’s specific position (i.e., perform an individualized assessment under the ADA as to the reasonableness of the length of the leave)?
  • Did the first leave create more burdens than expected, so that a second leave under the same conditions is not a reasonable accommodation under the ADA?

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