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  4. Written Testimony of Brian East Senior Attorney   Texas Disability Rights

Written Testimony of Brian East Senior Attorney   Texas Disability Rights

Meeting of June 8, 2011 - EEOC to Examine Use of Leave As Reasonable Accommodation

     

Good morning, and thank you for inviting me to give testimony today.  My name is Brian East and I am a Senior Attorney for Disability Rights Texas, the designated "protection and advocacy" system for people with disabilities in Texas.  Among other things we work to safeguard the rights of people with disabilities in a range of work environments. These efforts include, but are not limited to, ensuring that employers do not discriminate because of a person's disability. 

           

The ADA's nondiscrimination mandate includes the obligation to provide a reasonable accommodation, and a period of leave is one of the most important of those accommodations.1  Numerous clients contact us every week with employment issues, many involving accommodation matters, and many of those involving leave.

           

In 2008 Congress passed the ADA Amendments Act, and many of us expect that  its mandate—to broaden the definition of disability and simplify the coverage analysis—will result in many more cases being decided on the issue of accommodation.  Unfortunately, the case law is not always consistent as to the proper accommodation analysis, and although the EEOC has some strong guidance in this area, additional guidance could assist in harmonizing the cases and making the respective obligations clearer to employers and employees.  In my testimony I will focus on those areas in which more or clearer guidance could help.

1. Leave As a Reasonable Accommodation Under the ADA

     

Although the ADA's statutory definition of a reasonable accommodation does not mention "leave," it does include "part-time or modified work schedules … and other similar accommodations for individuals with disabilities."  42 U.S.C. § 12111(9)(B).

     

Repeated EEOC guidance confirms that leave is an accommodation. See, e.g., 29 C.F.R. Part 1630 App., § 1630.2(o) ("permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment"); A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act, § 3.10(4) (EEOC Jan. 1992)2 (hereafter "EEOC Technical Assistance Manual"); Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (EEOC Oct. 22, 2002)3 (hereafter "EEOC Guidance on Accommodations"); The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964, Question 1 and n.4 (EEOC July 6, 2000)4 (hereafter "EEOC Guidance on FMLA & ADA"); Questions and Answers About Diabetes in the Workplace and the Americans with Disabilities Act (ADA), Question 8 (EEOC Oct. 29, 2003)5 (hereafter "EEOC Diabetes Guidance") ("leave for treatment, recuperation, or training on managing diabetes"); Questions and Answers About Cancer in the Workplace and the Americans with Disabilities Act (ADA), Question 11 (EEOC Aug. 3, 2005) 6(similar); EEOC Enforcement Guidance: Workers' Compensation and the ADA, Question 18 (EEOC July 6, 2000);7 Small Employers And Reasonable Accommodation, Questions 6 and 7 (EEOC).8

The case law is consistent.  The Supreme Court has recognized that that accommodations may include breaks for medical treatment, US Airways, Inc. v. Barnett, 535 U.S. 391, 397–398 (2002), and every circuit to consider the issue recognizes that leave can be a reasonable accommodation. See, e.g., Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir.1998); Walton v. Mental Health Ass'n. of Southeastern Pennsylvania, 168 F.3d 661, 671 (3d Cir. 1999) ("unpaid leave supplementing regular sick and personal days might, under other facts, represent a reasonable accommodation," but leave requested here was not reasonable); Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir.1989) (decided under § 501 of the Rehabilitation Act); Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 782–783 (6th Cir. 1998) (medical leave of absence, paid or unpaid, may be reasonable accommodation); Haschmann v. Time Warner Entm't Co., 151 F.3d 591, 601 (7th Cir.1998); Brannon v. Luco Mop Co., 521 F.3d 843, 849 (8th Cir. 2008); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999); Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 967 (10th Cir. 2002); Taylor v. Rice, 451 F.3d 898, 910 (D.C. Cir. 2006). See also Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 185 n.5 (2d Cir. 2006) (noting that "[m]ost other circuits and the Equal Employment Opportunity Commission have concluded that, in some circumstances, an unpaid leave of absence can be a reasonable accommodation under the ADA.").

2. Reasons For Leave

     

Leave as an accommodation may be appropriate for a number of reasons, including medical treatment, repair of a prosthesis or equipment, temporary adverse conditions in the work environment, service-animal training, etc. EEOC Technical Assistance Manual, supra, § 3.10(4); EEOC Diabetes Guidance, supra, Question 8 ("leave for treatment, recuperation, or training on managing diabetes").

     

3. Proof of Reasonableness

The Supreme Court explained the proper allocation of proof for accommodation cases in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), relying on and approving the analysis of several circuits courts.  Ordinarily the plaintiff only has the burden of showing that an accommodation seems reasonable on its face, i.e., ordinarily or in the run of cases.  Id. at 401–402.  If it is reasonable on its face, the employer must then show the (typically case-specific) circumstances that demonstrate undue hardship.  Id. at 402.  Thus, reasonableness is a general inquiry while undue hardship is the case-specific one. 

     

The focus on the proposed accommodation is itself generalized.  The plaintiff need only show he seeks a "method of accommodation" that is reasonable in the run of cases.  Barnett, supra, at 402, quoting Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993) (emphasis in original).  See also Barnett, supra, at 410 (O'Connor, J., concurring) (substantially similar).  Many courts follow this language in focusing on the method or type of accommodation in the run of cases.  See, e.g., Shapiro v. Township of Lakewood, 292 F.3d 356, 361 (3d Cir. 2002) ("The first step requires the employee to show that the accommodation is a type that is reasonable in the run of cases.") (emphasis added); Willis v. Conopco, Inc., 108 F.3d 282, 286 n.2 (11th Cir. 1997) (method of accommodation); Riel v. Electronic Data Systems Corp., 99 F.3d 678, 683 (5th Cir. 1996) (same); E.E.O.C. v. Mollertech Corp., 2005 WL 1982974, at *7 (E.D. Mich. Aug. 12, 2005) (same).

 

This means, for example, that the plaintiff need only prove that unpaid leave is a type of accommodation that is reasonable in the run of cases.  The focus need be no more specific than that.  For example, courts should not require proof that leave of the particular length sought is reasonable in the run of cases.  Once this broad focus is understood, the reasonableness of leave is apparent.  The fact that courts repeatedly recognize it as a reasonable accommodation is enough to show that it is reasonable in the "run of cases."  This showing is also apparent from the EEOC guidance cited above.  It should also be enough that it is repeatedly referred to as a reasonable accommodation by the Job Accommodation Network,9 a service of Department of Labor in collaboration with West Virginia University and private industry, and the leading source of free, expert, and confidential guidance on workplace accommodations.  Finally, courts should find that any type or method of accommodation that it is included in the statutory or regulatory definition of "reasonable accommodation" is reasonable (in the general sense used here) as a matter of law, precluding any contrary result.

Once this generalized reasonableness is established, the plaintiff has carried her or his burden of proving "qualified."  That does not mean the plaintiff is entitled to the requested leave, of course.  It just means that the defendant must come forward with evidence of the specific reasons why such leave would result in an undue hardship. 

     

Unfortunately the case law and dicta are not always wholly consistent in following Barnett's commands.  For example, language in some leave cases, particularly some of those preceding Barnett, suggests that a certain type or length of leave may prevent the leave from being reasonable.  See, e.g., Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000).  But as shown above, reasonableness is not the part of the accommodation analysis in which courts should consider these case-specific factors.  In light of Barnett and above authorities, a leave of absence is reasonable in the run of case.  Factors such as length, type, or impact on the employer should be considered at a different stage of the analysis, i.e., as part of the employer's "undue hardship" defense (discussed below).  The court in Garcia-Ayala appeared to generally follow this distinction, albeit using inexact and potentially confusing terminology.

Request for Additional EEOC Guidance — Most accommodation cases do not focus on the specificity with which the plaintiff must show an accommodation is 'reasonable in the run of cases.'  In addition, some cases are analytically inconsistent or out of the mainstream on this issue.  The EEOC could aid in clarifying the law by adding guidance on proving reasonableness that is consistent with the above analysis, and by suggesting resources to consider in establishing reasonableness.

4. Defense of Undue Hardship

     

Under the ADA an employer need not provide an accommodation if it "can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business." 42 U.S.C. § 12112(b)(5)(A).  As stated above, the plaintiff only has the burden of showing that an accommodation seems reasonable on its face, i.e., ordinarily or in the run of cases.  Once the plaintiff has made this showing, the defendant has the burden of proving the (typically case-specific) circumstances that demonstrate undue hardship.  U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401–402 (2002).

     

"Undue hardship" means an action requiring significant difficulty or expense, when considered in light of the statutory factors. 42 U.S.C. § 12111(10); 29 C.F.R. § 1630.2(p)(1).  The factors include (a) the nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding; (b) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources; (c) the overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities; (d) the type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and (e) the impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business.  42 U.S.C. § 12111(10)(B); 29 C.F.R. § 1630.2(p)(2).

     

Generalized conclusions will not suffice; undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. EEOC Guidance on Accommodations, supra (text at n.113).  See also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 606 n.16 (1999) (observing that the "undue hardship" inquiry under the regulations implementing § 504 and Title II of the ADA require a "case-by-case analysis weighing factors"); Morton v. United Parcel Service, Inc., 272 F.3d 1249, 1256–1257 (9th Cir. 2001), cert. denied, 535 U.S. 1054 (2002) ("Undue hardship analysis is thus a fact-intensive inquiry, rarely suitable for resolution on summary judgment."), overruled in part on other grounds by Bates v. United Parcel Service, Inc., 511 F.3d 974 (9th Cir. 2007) (en banc); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1178 (10th Cir. 1999) (en banc) ("definition by necessity requires a case-by-case analysis").

     

An employer cannot claim undue hardship based on:

  • Fear or prejudice by coworkers or customers. Id. (text at 117).
  • The fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees (although employers may be able to show undue hardship if the accommodation would be unduly disruptive to the ability of other employees to work).  Id. (text following n.117).
  • The fact that coworkers may have to cover for the employee who is on leave. Rascon v. US West Communications, Inc., 143 F.3d 1324, 1335 (10th Cir. 1998).

     

There are lots of more relevant factors, of course.  Sometimes the ability to hire a temporary worker will eliminate any undue hardship, for example, although sometimes that is not possible.  Also, if an employer determines that one particular reasonable accommodation will cause undue hardship but a one will not, the employer must provide the second accommodation.  EEOC Guidance on Accommodations, supra (text between nn.116 and 117). 

5. Length of Leave

     

The plaintiff's burden is simply to identify a type of accommodation that is reasonable in the run of cases, and medical leave satisfies.  The question remains, however, whether the length of a particular leave constitutes an undue hardship under the facts in a particular case.

Neither the statute nor the regulations contain any per se rules as to the length of leave as an accommodation.  Courts should similarly reject such per se limits as inconsistent with the individualized fact-intensive approach to proving undue hardship, and many do so.  See, e.g., Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 782 (6th Cir. 1998) ("Upon reflection, we are not sure that there should be a per se rule that an unpaid leave of indefinite duration (or a very lengthy period, such as one year) could never constitute a 'reasonable accommodation' under the ADA. It is not clear why unpaid leave should be analyzed differently from any other proposed accommodation under the ADA."), quoting Norris v. Allied-Sysco Food Services, Inc., 948 F. Supp. 1418, 1439 (N.D. Cal. 1996), aff'd, 191 F.3d 1043 (9th Cir. 1999), cert. denied, 528 U.S. 1182 (2000); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 650 (1st Cir. 2000) ("These are difficult, fact intensive, case-by-case analyses, ill-served by per se rules or stereotypes.")10.

     

The fact is that the case law supports leave of various lengths, depending on the circumstances.  See, e.g.:

  • Two months: Berk v. Bates Advertising USA, Inc., 1997 WL 749386, at *6 (S.D.N.Y. Dec. 3, 1997) (employer should have granted leave in excess of two months to allow worker to recover from breast cancer surgery).
  • Four months: Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775 (6th Cir. 1998); Rascon v. US West Communications, Inc., 143 F.3d 1324, 1334 (10th Cir. 1998); Powers v. Polygram Holding, Inc., 40 F.Supp.2d 195, 197–201 (S.D.N.Y. 1999).
  • Five months: Carter v. General Elec. Co., 2000 WL 321663 (N.D. Ill. Mar. 21, 2000) (fact issue presented on whether employees request for fifth month of leave was reasonable accommodation).
  • Six months: Cleveland v. Federal Express Corp., 83 Fed. Appx. 74, 78–79 (6th Cir. Nov. 28, 2003).
  • Seven months: Shannon v. City of Philadelphia, 1999 WL 1065210, at *6 (E.D. Pa. Nov. 23, 1999) (jury could believe that additional three-month leave after 12-week FMLA leave was required).
  • One year: Norris v. Allied-Sysco Food Services, Inc., 948 F. Supp. 1418, 1439 (N.D. Cal. 1996), aff'd, 191 F.3d 1043 (9th Cir. 1999), cert. denied, 528 U.S. 1182 (2000); Vializ v. New York City Bd. of Educ., 1995 WL 110112 (S.D.N.Y. Mar. 13, 1995) (if employee could prove she could have returned to work if leave of absence of approximately one year had been provided, she would be entitled to relief under ADA).
  • More than one year: White v. Honda of America Mfg., Inc., 191 F. Supp. 2d 933, 951 (S.D. Ohio 2002) (jury question whether employer had to provide medical leave in excess of employers 12-month leave policy); Durrant v. Chemical/Chase Bank/Manhattan, N.A., 81 F. Supp. 2d 518, 521–522 (S.D.N.Y. 2000).
  • 13 months: Ralph v. Lucent Technologies, 135 F.3d 166, 172 (1st Cir.1998) (very limited four-weeks additional leave might be reasonable, even after plaintiff had been given 52 weeks of LWOP).
  • 17 months: Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000) (five months beyond employer's one-year job-hold policy)

     

The fact is that even lengthy leave may be required depending on the circumstances.  "For example, in the case of a very large employer, with high turnover and many fungible employees, an unpaid leave of an indefinite or very lengthy duration could be a reasonable accommodation if the leave would enable an easily replaceable employee to eventually perform the essential functions of the employee's position and the employer did not incur significant expenses as a result of maintaining the employee in the status of an employee."  Norris v. Allied-Sysco Food Services, Inc., 948 F. Supp. 1418, 1439–1440 (N.D. Cal. 1996), aff'd, 191 F.3d 1043 (9th Cir. 1999), cert. denied, 528 U.S. 1182 (2000).  On the other hand, even more modest leaves could be an "undue hardship" under particular facts.  The point, of course, is that the inquiry must be individualized.

6. Leave In Excess of FMLA or Company Policies

     

The appropriateness of a leave request is especially clear if the worker can show that the leave is consistent with company policy or with FMLA requirements. Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 967 (10th Cir. 2002); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246–1247 (9th Cir. 1999) (fact issue existed on whether leave expected to last eight to nine months was reasonable accommodation, in light of policy of allowing one-year leave without pay); Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 602 (7th Cir. 1998); Rascon v. US West Communications, Inc., 143 F.3d 1324, 1334 (10th Cir. 1998); Baucom v. Potter, 225 F. Supp. 2d 585, 592 (D. Md. 2002). See also Foster v. Time Warner Entertainment Co., L.P., 250 F.3d 1189, 1195 (8th Cir. 2001) (evidence in retaliation case sufficient for jury to find that plaintiff had an objectively reasonable belief that employers leave policy violated ADA); Shannon v. City of Philadelphia, 1999 WL 1065210, at *6 (E.D. Pa. Nov. 23, 1999) (fact issue on undue hardship because similar leave was offered to others).  See also Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 650 (1st Cir. 2000) ("In addition, this court has inquired into whether the company had made earlier policy decisions that it was more profitable to permit an employee additional leave than to hire and train a new employee."); Hoggatt v. Electrolux Home Products, Inc., 2010 WL 5211604, at *8 (M.D. Tenn. Dec. 16, 2010) (employer rejected request for FMLA leave for apparently valid reasons but "dropped the ball" by failing to consider its own leave policies).

     

But the ADA's accommodation obligation may require deviation from company policy.  As the Supreme Court has stated:

By definition any special accommodation requires the employer to treat an employee with a disability differently, i.e., preferentially. And the fact that the difference in treatment violates an employer's disability-neutral rule cannot by itself place the accommodation beyond the Act's potential reach. … Were that not so, the reasonable accommodation provision could not accomplish its intended objective .... Neutral break-from-work rules [for instance] would automatically prevent the accommodation of an individual who needs additional breaks from work, perhaps to permit medical visits.

US Airways, Inc. v. Barnett, 535 U.S. 391, 397–398 (2002).

     

Thus, many courts recognize that leave in excess of that granted by company policy, or by the FMLA, may be necessary.  See, e.g., Holly v. Clairson Industries, L.L.C., 492 F.3d 1247, 1263 (11th Cir. 2007), quoting EEOC Guidance on Accommodations, supra, Question 17; Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 650 (1st Cir. 2000) (unpaid leave beyond the one-year period provided in the employer's policies was reasonable accommodation for employees breast cancer); Parker v. Columbia Pictures Industries, 204 F.3d 326, 338 (2d Cir. 2000) (employer may be liable for firing plaintiff two weeks before the end of his short-term disability leave without investigating available accommodations); Gibson v. Lafayette Manor, Inc., 2007 WL 951473, at *7 (W.D. Pa. Mar. 27, 2007); Dutton v. Johnson County Bd. of County Com'rs, 859 F. Supp. 498 (D. Kan. 1994); Shannon v. City of Philadelphia, 1999 WL 1065210, at *6 (E.D. Pa. Nov. 23, 1999) (jury could believe that additional three-month leave after 12-week FMLA leave was a reasonable accommodation).  See also Torrico v. International Business Machines Corp., 319 F. Supp. 2d 390, 408 (S.D.N.Y. 2004) (employer may have been required to give plaintiff more than the standard 30 days to find a reassignment).

The EEOC guidance is to the same effect.  See, e.g., EEOC Technical Assistance Manual, supra, § 3.10(4) ("An employer is not required to provide additional paid leave as an accommodation, but should consider allowing use of accrued leave, advanced leave, or leave without pay, where this will not cause an undue hardship."); EEOC Guidance on Accommodations, supra, Question 21, Ex. A (similar); EEOC Guidance on FMLA & ADA, supra, Question 12.  Thus, although the EEOC has taken the position that employer leave policies are not subject to challenge under the adverse-impact theory, 29 C.F.R. Part 1630 App., § 1630.15(b) and (c), it also requires that employers consider providing leave in excess of company policy as a reasonable accommodation, unless the provision of leave would impose an undue hardship.  Id. 

7. Fixed Leave Policies

     

The EEOC guidance is clear that an employer may not simply follow its own fixed-leave policy11 and terminate an employee with a disability who needs leave beyond the set period, without considering whether additional leave could be provided without undue hardship.  Accommodation Guidance, supra, Question 17.  This is consistent with the fact that reasonable accommodation may often require modifying workplace policies.  Id.

           

The Supreme Court reinforced this point in Barnett, courts have expressly cited the above Guidance in rejecting fixed-leave arguments, e.g., Holly v. Clairson Industries, L.L.C., 492 F.3d 1247, 1263 (11th Cir. 2007); Gibson v. Lafayette Manor, Inc., 2007 WL 951473, at *7 (W.D. Pa. Mar. 27, 2007) (similar), and courts generally follow this analysis.  See § 6 above.12 Decisions under similar state laws are likewise consistent.  See, e.g., Lafever v. Acosta, Inc., 2011 WL 1935888, at *2 (N.D. Cal. May 20, 2011).

8. Finite vs. Indefinite Leave

     

Many courts state that an employer is not required to grant indefinite leave while waiting for an uncertain recovery.  See, e.g., Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1110 (10th Cir. 1999).  Those cases are often based on precedent pre-dating Barnett's direction that reasonableness is a generalized inquiry into the type or method of suggested accommodation, while the specifics are dealt with under undue hardship.  To the extent they conflict with Barnett, they are not controlling. 

           

But many of the holdings in such cases are in fact consistent with Barnett, although using inexact pre-Barnett language, because they are based on specific evidence of hardship.  For example, in Taylor the court stated:

At the time Defendant terminated him, Plaintiff had already been on leave for medical treatment for more than one year. Plaintiff's doctor did not release him to return to work, subject to substantial restrictions, until June 2, 1997. Plaintiff would have required ten and one-half months combined with and following a one year medical leave. Such an accommodation is not reasonable, particularly when Plaintiff had already advised Defendants he would never be able to return to his former position and could not advise when and under what conditions he could return to any work.

Taylor v. Pepsi-Cola Co., supra, 196 F.3d at 1110.  See also Dark v. Curry County, 451 F.3d 1078, 1090 (9th Cir. 2006) (although a recovery time of an unspecified duration may not be required, the employer "was obligated to consider this option under the particular circumstances"); Pickens v. Soo Line R.R., 264 F.3d 773, 778 (8th Cir. 2001) (request that plaintiff "work only when he feels like working" was unreasonable as a matter of law, in context of employer's offer of alternate accommodation that the plaintiff refused, plaintiff's falsifying medical evidence, and plaintiff's sworn testimony that "he was completely unable to work in the railroad industry because of his disability"); Walsh v. United Parcel Serv., 201 F.3d 718, 727 (6th Cir. 2000) (reasserting requirement for individualized analysis but not requiring accommodation because even after one year's paid leave, followed by five months unpaid leave, plaintiff's homeopathic physician only offered the vague possibility of returning in one to three more years, and suggested no other work he could do); Walton v. Mental Health Assoc. of Southeastern Pennsylvania, 168 F.3d 661, 671 (3d Cir. 1999) ("requested accommodation—continued leave—would have created an undue burden"); and Corder v. Lucent Tech., Inc., 162 F.3d 924, 928 (7th Cir. 1998) (employer did not need to provide indefinite leave in light of frequent, unpredictable absences, history of extended leave over a long period of time and other reasonable accommodations designed to give the employee every opportunity to perform her job).13

           

In sum, the results in many such cases are defensible, even under the proper analysis.  But simply repeating blanket statements untethered to the language of the statute or the Supreme Court's analysis is not helpful.

    

After Barnett the plaintiff's burden is to show generalized reasonableness, and a leave of absence satisfies that test.  The details of the leave request, and how it would impact the employer, become relevant when considering the affirmative defense of "undue hardship."  Some courts are clear on this, e.g., Cleveland v. Federal Express Corp., 83 Fed. Appx. 74, 78–79 (6th Cir. 2003) (indefinite leave could be a reasonable accommodation unless it would be an undue hardship).  The EEOC has also been clear on this fact, at least until recently.

           

In its guidance on reasonable accommodations, the agency stated that leave, even without a fixed return date, "is a form of reasonable accommodation."  However, the guidance further explained that "if an employer is able to show that the lack of a fixed return date causes an undue hardship, then it can deny the leave."  EEOC Guidance on Accommodations, supra, Question 44.14  This used to be the EEOC's consistent message, and it remains the correct one.

             

Thus, even less-definite leave may be required depending on the circumstances.  "For example, in the case of a very large employer, with high turnover and many fungible employees, an unpaid leave of an indefinite or very lengthy duration could be a reasonable accommodation if the leave would enable an easily replaceable employee to eventually perform the essential functions of the employee's position and the employer did not incur significant expenses as a result of maintaining the employee in the status of an employee."  Norris v. Allied-Sysco Food Services, Inc., 948 F. Supp. 1418, 1439–1440 (N.D. Cal. 1996), aff'd, 191 F.3d 1043 (9th Cir. 1999), cert. denied, 528 U.S. 1182 (2000).

           

Unfortunately the agency has introduced inconsistency in its Guidance on Performance and Misconduct.  In Question 21 the EEOC poses the question: "Do employers have to grant indefinite leave as a reasonable accommodation to employees with disabilities?"  It answers "No … they have no obligation to provide leave of indefinite duration."  This is an improper per se rule, results from an incomplete analysis, and is misleading.  The guidance goes on to observe that "[g]ranting indefinite leave, like frequent and unpredictable requests for leave, can impose an undue hardship on an employer's operations."  Id. (emphasis added).  That is certainly true.  Unfortunately, this belated recognition that evidence of indefiniteness may support a finding of undue hardship does not undo the confusion introduced by the false certainty of the original, blanket answer.  Moreover, footnote 76 in this guidance both overstates the consistency of the opposing case law, and misses an opportunity to explain it or attempt to harmonize it with the proper analysis.15

Request for Clarification of EEOC Guidance—The EEOC Guidance on Performance and Misconduct introduces uncertainty regarding the proper analysis in cases involving allegedly indefinite leave, and it should be corrected to comport with previous guidance and the above analysis.

9. Return-to-Work Dates

     

Whether or not an employer is required to provide indefinite leave, an absolute return-to-work date is not required.  A probable date is sufficient. EEOC Guidance on Accommodations, supra, Question 44 ("Treatment and recuperation do not always permit exact timetables. Thus, an employer cannot claim undue hardship solely because an employee can provide only an approximate date of return.").  The case law is consistent.  See, e.g., Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 186 n.6 (2d Cir. 2006) (leave of absence may be a reasonable accommodation if it is reasonably likely to enable the employee to return to work); Dark v. Curry County, 451 F.3d 1078, 1090 (9th Cir. 2006), cert. denied, 549 U.S. 1205 (2007); Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1136 (9th Cir. 2001) (the ADA does not require an employee to show that a leave of absence is certain or even likely to be successful to prove that it is a reasonable accommodation); Prewitt v. United States Postal Service, 662 F.2d 292, 310 (5th Cir. 1981) (finding "plausible" effectiveness sufficient under Rehabilitation Act); Stewart v. U.S., 2000 WL 1705657, at *8 (N.D. Cal. Oct. 10, 2000); Baucom v. Potter, 225 F. Supp. 2d 585, 592 (D. Md. 2002) (statement by plaintiff's doctor that he could have returned to work after two to three weeks of treatment sufficient to show plaintiff qualified); Carter v. General Elec. Co., 2000 WL 321663, at *4 (N.D. Ill. Mar. 21, 2000) (fact issue presented on employer's failure to accommodate plaintiff's fibromyalgia, which had prevented her working for four months at the time of her termination, since her doctor believed she could return to work after one more month of leave); Shannon v. City of Philadelphia, 1999 WL 1065210 (E.D. Pa. 1999) (jury could believe that additional three-month leave after 12-week FMLA leave was a reasonable accommodation, in light of doctor's statement that he was hopeful that plaintiff would be fully fit to return to work in three to six months). See also Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648-50 (1st Cir. 2000) (plaintiff's request for a two-month extension of leave after 15 months of medical leave was not a request for indefinite leave and could be denied only if employer showed undue hardship).16 But cf. Brannon v. Luco Mop Co., 521 F.3d 843, 848–849 (8th Cir.), cert denied, 129 S. Ct. 725 (2008) (employer not required to grant third extension of return-to-work date because by that point leave became indefinite).

     

Employers should not be permitted to turn inherent medical inexactness into a claim of indefinite leave.  In one case, for example, the employee requested a period of leave and submitted a doctor's note along with it giving her expected return date.  The HR staff then questioned the employee and got her to state that if she was not better by that date, she would not be able to return until later.  The employer then claimed that she was seeking indefinite leave.  This is improper.

     

Moreover, the employer cannot defend on the basis of the lack of a definite return-to-work date if it is the result of the employer's failure to engage in the interactive process. Gibson v. Lafayette Manor, Inc., 2007 WL 951473, at *9 (W.D. Pa. Mar. 27, 2007).

     

Note, too, that asking for a finite period of leave in order to assess whether and when a person may return to work is not the same as requesting indefinite leave. Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 185–186 (2d Cir. 2006).

    

One effect of the inappropriate per se rule on indefinite leave is to create a trap for employees whose initial request for accommodation does not include a return-to-work date, or simply states the generic "unknown."  Before an employer should be able to rely on the "indefiniteness" of a leave request as a justification for avoiding the accommodation, the interactive process should compel the employer to explain its particular difficulty surrounding the lack of a return date, and to invite the employee to seek an approximate return-to-work invitation from a caregiver.  Alternatively, the employer should state the length of leave that it could provide without incurring "undue hardship."  Otherwise, this can result in the type of "gotcha" that the interactive process was designed to eliminate, because many employees and doctors do not understand the importance of including an estimated return date.

     

Request for Additional EEOC Guidance—Many problems could be avoided by guidance relating to the above examples, requiring a true interactive process before claiming an impasse over indefinite leave, and prohibiting efforts to talk the employee into making less-definite statements in the face of a probable return-to-work date.

10. Intermittent Leave

     

In some cases the employee seeks intermittent leave as a reasonable accommodation.  Several courts have indicated that an employer may not be able to accommodate extremely irregular attendance. Rios-Jimenez v. Principi, 520 F.3d 31, 42 (1st Cir. 2008); Rask v. Fresenius Medical Care North America, 509 F.3d 466, 470–471 (8th Cir. 2007), cert. denied, 128 S. Ct. 2965 (2008); Earl v. Mervyns, Inc., 207 F.3d 1361, 1366 (11th Cir. 2000) (obsessive-compulsive disorder prevented arriving at work on time regardless of shift); Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999) (in most instances the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability). 

    

This is no doubt true in certain circumstances, but the evidence may support the opposite result as well.  For example, the Fifth Circuit recently rejected the argument in Carmona v. Southwest Airlines Co., 604 F.3d 848, 859–860 (5th Cir. 2010) (noting there was reason to doubt that attendance was an essential job function given that the employer granted frequent leave).  Moreover, the employer may be required to make reasonable accommodation to help the employee bring attendance to acceptable levels. Fritz v. Mascotech Automotive Systems Group, Inc., 914 F. Supp. 1481, 1490–1491 (E.D. Mich. 1996) (employee with poor attendance was not qualified, but employer who has not shown that no reasonable accommodation would have enabled him to reach acceptable level of attendance is not entitled to summary judgment).

     

The key point is similar to that made above—whether the employer is required to provide intermittent leave depends on the particular evidence, analyzed under the ADA's undue hardship defense.17  The EEOC's Performance and Misconduct Guidance may have fostered some confusion in this area as well, in much the same way that it did with regard to indefinite leave and erratic attendance.  The Guidance first states that employers need not accept irregular, unreliable attendance, and only later does it explain that the proper analysis is that of undue hardship.  Id., Question 20.  But as shown above, that defense is a fact-based inquiry that does not lend itself to per se rules.

Request for Clarification of EEOC Guidance—The EEOC Guidance on Performance and Misconduct introduces uncertainty regarding the proper analysis in cases involving irregular attendance, and it should be corrected to comport with the above analysis.

11. Attendance as an Essential Function

     

Some courts have characterized regular attendance as an essential job function.  See, e.g., Rios-Jimenez v. Principi, 520 F.3d 31, 42 (1st Cir. 2008) ("At the risk of stating the obvious, attendance is an essential function of any job."); Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996) (attendance is essential function of "most" jobs); Tyndall v. Nat'l Education Centers, 31 F.3d 209 (4th Cir. 1994) (a regular attendance level is a required element of most jobs).  Cf. Davis v. Florida Power & Light Co., 205 F.3d 1301, 1305–1306 (11th Cir. 2000) (mandatory overtime is akin to job presence, which has been held to be essential function).

     

There are several problems with such a statement.  First, it is facially inconsistent with the fact (established above) that leave is a reasonable accommodation, and thus contradicts established law.  See McNeil v. United States Postal Service, EEOC Request No. 05960436 (July 28, 1998) ("The [USPS] argued that appellant was not a qualified individual with a disability, because regular attendance was an essential function of her job. The Commission, however, reminded the agency that such an argument would prevent any employee with a disability who is frequently absent for a disability-related reason from being considered qualified. … [The Commission] further found that the agency had failed to show that excusing the appellant's absences related to her disability would cause an undue hardship.").18  By definition the statement cannot be true in all cases.

       

These statements also suggest that telework would never be permitted, but there is little support for that view, and it is contrary to the case law and EEOC guidance.  See § 12 below.  Certainly there are jobs that actually do require attendance at the employer's facility, and that are thus inconsistent with telework arrangements.  But they are by no means all-inclusive, and the number of such jobs is shrinking in this technological age.

           

Another criticism of such statements is that in many cases there appears to be no evidence on point.  Compare Hoggatt v. Electrolux Home Products, Inc., 2010 WL 5211604, at *9 (M.D. Tenn. Dec. 16, 2010) ("First, it appears that the issue of whether attendance is an essential job requirement is itself a question of fact.").  These statements are instead best understood as simply a prediction of the outcome when conducting the "undue hardship" analysis in cases involving very lengthy or unpredictable leave.  But they do not establish a rule to be followed divorced from the particular facts, and they have no real textual support. 

           

There is also a definitional problem with the statement.  Under the regulations, essential functions of the job are the fundamental duties of the job held or desired.  29 C.F.R. § 1630.2(n)(1).  The ADA regulations give three non-exclusive reasons a job function may be considered essential—because the reason the position exists is to perform that function; because the number of employees available to perform that function is limited; or because the function is highly specialized, so that the employee in the position is hired for his or her expertise or ability to perform the particular function.  29 C.F.R. § 1630.2(n)(2). See also A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act (1992), § 2.3(a) (EEOC Jan. 1992).19  "In identifying an essential function to determine if an individual with a disability is qualified, the employer should focus on the purpose of the function and the result to be accomplished, rather than the manner in which the function presently is performed."  Technical Assistance Manual, supra, § 2.3(a)(3)(b).  See also Skerski v. Time Warner Cable Co., 257 F.3d 273, 280 (3d Cir. 2001) (quoting legislative history).

Attendance simply does not meet the above definition.  It is a means to an end, not the end itself.  The EEOC captured this point in its Accommodation Guidance at note 65, but it probably deserves a fuller explanation.

     

Moreover, the determination of essential functions involves consideration of all relevant evidence, 29 C.F.R. pt 1630 App § 1630.2(n), including the evidence listed in 29 C.F.R. pt 1630 App § 1630.2(n)(3)(i).  Whether a function is essential is a factual determination that must be made on a case-by-case basis based upon all relevant evidence.  29 C.F.R. pt 1630 App § 1630.2(n).  See also Turner v. Hershey Chocolate U.S., 440 F.3d 604, 612 (3d Cir. 2006); Davidson v. America Online, Inc., 337 F.3d 1179, 1191 (10th Cir. 2003); Cripe v. City of San Jose, 261 F.3d 877, 888 n.12 (9th Cir. 2001); Hoskins v. Oakland County Sheriff's Dept., 227 F.3d 719, 726 (6th Cir. 2000); Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997) ("Plainly, the considerations set out in [29 C.F.R. § 1630.2(n)] are fact-intensive.").

           

Making blanket statements about "all" or "most" jobs is thus inappropriate, as some courts recognize.  See, e.g., Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000); Ward v. Massachusetts Health Research Institute, Inc., 209 F.3d 29, 35 (1st Cir. 2000) ("Granted, a regular and reliable schedule may be an essential element of most jobs. However, as indicated below, resolution of the issue in each case requires a fact-intensive inquiry into the pattern of the attendance problem and the characteristics of the job in question. And the defendant, who has better access to the relevant evidence, should bear the burden of proving that a given job function is an essential function.") (citations omitted).  Other courts, whatever their dicta, actually conduct an individualized, undue-hardship analysis to reach a holding.  See, e.g., Brenneman v. MedCentral Health System, 366 F.3d 412 (6th Cir. 2004) (evidence showed that pharmacy tech position—which entailed preparing and delivering medications to hospital patients; ordering, receiving, and stocking medications; and posting charges to patients' accounts—had to be performed at defendant's premises).

           

Rather than making such blanket predictions, the proper focus in such cases is whether the leave requested, or the exception to the attendance policy requested, would pose an undue hardship.  Irregular or lengthy leave may certainly pose a problem for some employers, and if so, they should put on evidence of it under the statutory defense.

  

Request for Expansion of EEOC Guidance—The EEOC Guidance should attempt to clarify the proper, individualized focus on attendance issues as part of the undue hardship analysis, consistent with the above analysis.

12. Common Alternatives to Traditional Leave

It is important to note that even if leave is unavailable for whatever reason, there are alternatives that the employer may have to consider, including, e.g.:

Telecommuting: e.g., Woodruff v. Peters, 482 F.3d 521, 528 (D.C. Cir. 2007); Humphrey v. Memorial Hospitals Ass'n, 239 F.3d 1128, 1136–1137 (9th Cir. 2001), cert denied, 535 U.S. 1011 (2002); Langon v. Department of Health and Human Services, 959 F.2d 1053 (D.C. Cir. 1992) (allowing computer programmer to work at home may be reasonable accommodation); Johnson v. McGraw-Hill Companies, 451 F. Supp. 2d 681, 707 (W.D. Pa. 2006); Howard v. Gutierrez, 2005 WL 3274394, at *3 (D.D.C. 2005) (telecommuting two days a week could be reasonable); Niimi-Montalbo v. White, 243 F. Supp. 2d 1109, 1125 (D. Haw. 2003); Davis v. Guardian Life Ins. Co. of America, 2000 WL 1848596 (E.D. Pa. 2000); Reasonable Accommodations for Attorneys with Disabilities, Example 14 (EEOC May 23, 2006);20 EEOC Guidance on Accommodations, supra, Question 39; Work At Home/Telework as a Reasonable Accommodation (EEOC Feb. 3, 2003).21

  • Reasonable periods of part-time status: e.g., Ralph v. Lucent Technologies, Inc., 135 F.3d 166 (1st Cir. 1998) (court upholds preliminary injunction requiring four-week trial return to part-time work for employee recovering from posttraumatic stress disorder).
  • Schedule changes and flexibility: e.g., Holly v. Clairson Industries, L.L.C., 492 F.3d 1247 (11th Cir. 2007).

     

In addition, the fact that the employer has allowed a medical leave does not mean that it has no other obligations; an employee returning from such leave may require additional accommodations.  See, e.g., Parker v. Columbia Pictures Industries, 204 F.3d 326, 338 (2d Cir. 2000) (employee who proposes accommodation more than two weeks before end of leave "triggers a responsibility on the employer's part to investigate that request and determine its feasibility. An employer who fails to do so, and instead terminates the employee based on exhaustion of leave, has discriminated 'because of' disability within the meaning of the ADA.").

     

Although both the statute and the case law support flexible schedules as accommodations, the EEOC's Performance and Misconduct Guidance has created confusion in this area as well, in much the same way that it did with regard to indefinite leave and erratic attendance.  That it, it first states that employers need not grant open-ended schedules, and only later explains that the proper analysis is that of undue hardship, which is a fact-based inquiry that does not lend itself to per se rules.  Id., Question 20.

— The EEOC Guidance on Performance and Misconduct introduces uncertainty regarding the proper analysis in cases involving irregular attendance, and it should be corrected to comport with the above analysis.

13. Sufficient Requests for Reasonable Accommodation

     

The employee normally has the duty to request an accommodation (although there are exceptions to that general rule, as noted below).  Many courts recognize that asking for leave is a sufficient request for accommodation. See, e.g., Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 185 (2d Cir. 2006) (requesting a "couple of weeks" to allow the doctor to evaluate the possibility of returning to work); Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 967 (10th Cir. 2002) (request for leave was a request for reasonable accommodation); Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 784 (6th Cir. 1998) (doctors note requesting leave); Rascon v. US West Communications, Inc., 143 F.3d 1324, 1335 (10th Cir. 1998) (employee with PTSD not required to request certain type of leave; sufficient to state that he wanted to go into treatment program); Attis v. Solow Realty Development Co., 522 F. Supp. 2d 623, 629 (S.D.N.Y. 2007) (employee's statement that she would return from psychiatric hospital in approximately ten days is sufficient request for accommodation); Huffsmith v. Yellow Transp., Inc., 2006 WL 2371977 (M.D. Pa. 2006); White v. Honda of America Mfg., Inc., 191 F. Supp. 2d 933, 950 (S.D. Ohio 2002) (request for extension of medical leave was implicit in requests that employer not fire plaintiff pursuant to the 12-month, maximum-leave policy); Shepherd v. Honda of America Mfg., Inc., 160 F. Supp. 2d 860, 872 (S.D. Ohio 2001) (doctor's letter requesting leave); Mark v. Burke Rehabilitation Hosp., 1997 WL 189124, at *6 (S.D.N.Y. April 17, 1997) (employer knew employee's leave was for chemotherapy and had duty to accommodate); Schmidt v. Safeway Inc., 864 F. Supp. 991, 997 (D. Or. 1994) (doctor's recommendation and discussion during union grievance of leave of absence to undergo alcohol treatment was sufficient).

     

The EEOC guidance on this point is generally consistent.  See, e.g., EEOC Guidance on FMLA & ADA, supra, Question 16 (statement that "I need six weeks off to get treatment for a back problem" is sufficient request for an ADA accommodation as well as for FMLA leave); EEOC Guidance on Accommodations, supra, Question 1, Ex. B (same); EEOC Diabetes Guidance, supra, Question 9 (custodian tells supervisor he needs three days off to learn how to manage his diabetes); EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, Question 17 Ex. A (Mar. 5, 2009)22 (hereafter "EEOC Guidance on Psychiatric Disabilities") (asking for time off because employee is "depressed and stressed"); id. at Ex. B (wife tells HR that employee is disoriented, mentally falling apart, and being hospitalized, and asks about procedures for extending leave).

     

There are also several authorities suggesting that a request for FMLA leave serves as a request for an ADA accommodation. See, e.g., Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 967 (10th Cir. 2002) (sufficient evidence that plaintiff was "qualified" based on argument that request for FMLA leave was request for accommodation); Villalon v. Del Mar College Dist., 2010 WL 3221789, at *7 (S.D. Tex. Aug. 13, 2010); Garcia v. Third Federal Sav. and Loan Ass'n of Cleveland, 2007 WL 1235820, at *6 (N.D. Ohio Apr. 26, 2007).  See also Mascioli v. Arby's Restaurant Group, Inc., 610 F. Supp. 2d 419 (W.D. Pa. 2009) (finding general statement about the need for time off sufficient request for both FMLA leave and ADA accommodation); Wilson v. Lemington Home for the Aged, 159 F. Supp. 2d 186, 201 (W.D. Pa. 2001) (similar); Cox v. True North Energy, LLC, 524 F. Supp. 2d 927 (N.D. Ohio 2007); 29 C.F.R. § 825.702(c)(2) (FMLA regulation clarifying that request for leave may trigger FMLA obligations as well as an accommodation obligation under the ADA).23  Similarly, there is also support for treating requests for STD or LTD as accommodation requests. See Swift v. Bank of America, 2009 WL 723521, at *13 and 16 (D. Me. Mar. 16, 2009) (regarding STD), citing Bayonne v. Pitney Bowes, Inc., 2004 WL 213168, at *2 (D. Conn. Jan. 27, 2004), for the proposition that requesting LTD is requesting an accommodation.  See also Morton v. GTE North Inc., 922 F. Supp. 1169, 1180 (N.D. Tex. 1996).

     

Unfortunately, employers that receive something identified (or perceived) as an FMLA request, for example, may take adverse action upon determining that FMLA leave is unavailable.  See, e.g., Hoggatt v. Electrolux Home Products, Inc., 2010 WL 5211604, at *8 (M.D. Tenn. Dec. 16, 2010) (employer rejected request for FMLA leave for apparently valid reasons but "dropped the ball" by failing to consider its own leave policies).

Request for Additional EEOC Guidance—The EEOC Guidance on FMLA & ADA, supra, at Question 16 states that "[i]f an employee requests time off for a reason related or possibly related to a disability (e.g., 'I need six weeks off to get treatment for a back problem'), the employer should consider this a request for ADA reasonable accommodation as well as FMLA leave."  On the other hand, the Guidance also points out that "if the employee states that s/he only wants to invoke rights under the FMLA, the employer should not make additional inquiries related to ADA coverage."  The EEOC could further clarify the law by adding a statement to its guidance that a request for FMLA leave, or for STD or LTD, is a sufficient request for accommodation (absent an express statement by the employee that he or she does not intend to seek an accommodation).  This would also be consistent with current guidance and much of the case law. 

     

There are also a variety of exceptions to the normal obligation on the plaintiff to request an accommodation.  See, e.g., Employee and Union Member Guide to Labor Law, § 7:63 at nn.7–13 (Thomson Reuters/West, May 2011). 24 For example, finding out than an employee is in a hospital and could not respond to queries put employer on notice that accommodation was required. Durrant v. Chemical/Chase Bank/Manhattan, N.A., 81 F. Supp. 2d 518, 521–522 (S.D.N.Y. 2000). See also EEOC Guidance on Psychiatric Disabilities, supra, Question 17 Ex. B (wife reporting that employee is being hospitalized, and asking about procedures for extending leave and extra time to do so). Moreover, the plaintiff need not request an accommodation that the employer has already offered. Attis v. Solow Realty Development Co., 522 F. Supp. 2d 623, 629–630 (S.D.N.Y. 2007).

Request for Clarification of EEOC Guidance—The EEOC Guidance certainly recognizes exceptions to the employee's obligation to request an accommodation, but some of the agency guidance suggests an overly narrow view of such exceptions.  The EEOC could make its guidance more consistent, and further clarify the law, by including a fuller list of the circumstances in which an accommodation request may not be necessary.

    

Again, thank you very much for the opportunity to speak with you all.

 

Footnotes

1 In this testimony my references to the "ADA" are generally meant to include the provisions of the Rehabilitation Act of 1973 that relate to employment discrimination, because the relevant substantive provisions in those statutes are the same.  See 29 U.S.C. §§ 791(g), 793(d), and 794(d); 29 C.F.R. § 1614.203(b).

2 Online at https://www.eeoc.gov/laws/guidance/technical-assistance-manual-employment-provisions-title-i-americans-disabilities-act.

3 Online at http://www.eeoc.gov/policy/docs/accommodation.html.

4 Online at http://www.eeoc.gov/policy/docs/fmlaada.html.

5 Online at http://www.eeoc.gov/facts/diabetes.html

6 Online at https://www.eeoc.gov/laws/guidance/cancer-workplace-and-ada.

7 Online at http://www.eeoc.gov/policy/docs/workcomp.html.

8 Online at http://www.eeoc.gov/eeoc/publications/accommodation.cfm.

9 See, e.g., JAN's extensive "Accommodation and Compliance Series" for both general guidance, e.g., Employers' Practical Guide to Reasonable Accommodation Under the Americans with Disabilities Act (JAN updates May 15, 2009), http://askjan.org/ErGuide/ErGuide.pdf; and regarding conditions as diverse as Parkinson's Disease, http://askjan.org/media/PD.html; hepatitis, http://askjan.org/media/hep.html; mental health impairments, migraine headaches, http://askjan.org/media/Migraine.html; cancer, http://askjan.org/media/Cancer.html; lupus, http://askjan.org/media/Lupus.html; arthritis, http://askjan.org/media/Arthritis.html; http://askjan.org/media/Psychiatric.html; etc.

10 Although some courts appear to draw per se rules, they usually involve leave in excess of a year.  See Powers v. Polygram Holding, 40 F. Supp. 2d 195, 200 (S.D.N.Y. 1999).  See also Walsh v. United Parcel Service, 201 F.3d 718, 727 (6th Cir. 2000) ("Our review of case law … suggests that it would be very unlikely for a request for medical leave exceeding a year and a half in length to be reasonable. However, we must still address the particular accommodation that plaintiff requested.").

11 Such policies, often confusingly referred to as "no fault" leave policies, typically state that it may automatically terminate employees after they have been on leave for a certain period of time.

12See also Robinson v. Neodata Services, Inc., 94 F.3d 499, 502 (8th Cir. 1996) (describing employer's offer of leave in excess of policy as a reasonable accommodation). Although one circuit upheld the application of a maximum-leave policy, Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042 (6th Cir. 1998), that pre-Barnett decision was solely in the context of a disparate-impact claim.  (The plaintiff's failure-to-accommodate claim failed because she did not request an accommodation.) 

13 Other indefinite-leave statements are similarly explainable.  See, e.g., Peyton v. Fred's Stores of Arkansas, 561 F.3d 900 (8th Cir. 2009) (outcome based in part on the plaintiff's stipulation that indefinite leave is not a reasonable accommodation).

14 The guidance suggests that undue hardship may be based on evidence of, for example, the disruption to the employer's operations if it cannot plan around the employee's absence nor permanently fill the position, or if temporary help of a specialized kind is impossible to find.  Accommodation Guidance, Question 44.        On the other hand, "in the case of a very large employer, with high turnover and many fungible employees, an unpaid leave of an indefinite or very lengthy duration could be a reasonable accommodation if the leave would enable an easily replaceable employee to eventually perform the essential functions of the employee's position and the employer did not incur significant expenses as a result of maintaining the employee in the status of an employee."  Norris v. Allied-Sysco Food Services, Inc., 948 F. Supp. 1418, 1439–1440 (N.D. Cal. 1996), aff'd, 191 F.3d 1043 (9th Cir. 1999), cert. denied, 528 U.S. 1182 (2000).  In addition, an employer may be able to grant such leave initially, but require periodic updates on the plaintiff's condition and possible return date, so that the employer may reevaluate if necessary.  Accommodation Guidance, Question 44.

15 Other criticisms can be leveled at this particular guidance, substantive and otherwise.  The language used in its examples is less than satisfactory.  As shown above this Guidance makes blanket statements that certain accommodations are not required (without a clear-enough explanation of the proper analysis).  Yet it often avoids similarly strong language that would clearly explain the nature of the employer's actual legal obligations, opting instead for what sounds like non-mandatory "best practices."  See, e.g., Ex 1 (instead of using mandatory language, it suggests that accommodating the employee is simply a matter of choice).  Similarly "soft" language is used in Exs. 7, 8, 11, 17, 19, 24, 34, 36, 42, 43, and 44.

16 Of course, more finite periods of leave should be granted as a reasonable accommodation. Parker v. Columbia Pictures Industries, 204 F.3d 326, 338 (2d Cir. 2000) (employer may be liable for firing plaintiff two weeks before end of his short-term disability leave without investigating available accommodations); Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 600–601 (7th Cir. 1998) (employee with lupus should have been granted second period of leave for two to four weeks); Ralph v. Lucent Technologies, Inc., 135 F.3d 166 (1st Cir. 1998) (upholding preliminary injunction requiring four-week trial return to part-time work for employee recovering from posttraumatic stress disorder); Garcia v. Illinois Dept. of Children and Family Services, 2006 WL 2632919 (N.D. Ill. 2006); White v. Honda of America Mfg., Inc., 191 F. Supp. 2d 933, 951 (S.D. Ohio 2002) (jury question whether medical leave in excess of employer's 12-month leave policy was reasonable); Durrant v. Chemical/Chase Bank/Manhattan, N.A., 81 F. Supp. 2d 518, 522 n.17 (S.D.N.Y. 2000); Schmidt v. Safeway Inc., 864 F. Supp. 991 (D. Or. 1994) (leave to enter alcoholism treatment program).

17 If an employer is covered by the FMLA, which statutorily requires intermittent leave in certain circumstances, this may be some evidence that providing it would not pose an undue hardship under the ADA.

18 Referenced online at http://www.eeoc.gov/federal/digest/xi-7-2.cfm.

19 Available online at https://askjan.org/publications/ada-specific/Technical-Assistance-Manual-for-Title-I-of-the-ADA.cfm?csSearch=2907774_1.

20 Online at http://www.eeoc.gov/facts/accommodations-attorneys.html.

21 Online at http://www.eeoc.gov./facts/telework.html.

22 Online at http://www.eeoc.gov/policy/docs/psych.html.

23 Although there is contrary authority regarding FMLA requests as sufficient ADA leave, it relies on inapposite cases, Trevino v. United Parcel Service, 2009 WL 3423039, at *12 (N.D. Tex. Oct. 23, 2009), or on the fact that the employer had no information about the plaintiff's disability. Treaster v. Conestoga Wood Specialties, Corp., 2010 WL 2606479, at *34 (M.D. Pa. Apr. 29, 2010); Chapman v. UPMC Health System, 516 F. Supp. 2d 506, 532–533 (W.D. Pa. 2007); McCarron v. British Telecom, 2002 WL 1832843, at *12 (E.D. Pa. Aug. 7, 2002). These latter cases are inconsistent with case law on how much disability-related knowledge is actually required, and in any event the ADAAA's expansion of the definition of disability may well change the outcome in these cases.

24 The authorities collected there show courts make appropriate exceptions if (a) the request would be futile or might result in discipline, (b) the employer does not give the employee a chance to make a request, (c) the job duties requiring accommodation were adopted to target an employee's disability, (d) the employer was already providing some accommodation, (d) the employee's disability interferes with the ability to make such a request, and (e) the employee's disability and need for accommodation are known or obvious.