When employers face a request for a reasonable accommodation made by a disabled employee under the Americans With Disabilities Act (ADA), it can easily become a thorny legal tussle over what is considered reasonable. One accommodation that can be helpful or lead to litigation in some circumstances is unpaid leave, depending on how it is applied.
“If the employee’s restrictions prevent the employee from performing the necessary job duties, an unpaid leave of absence may be considered a reasonable accommodation,” says attorney Michael J. Moberg of the Jackson Lewis law firm.
But he admits that the idea is not without its drawbacks. Unpaid leave can pose challenges for manufacturers due to staffing requirements needed to meet production goals. An additional concern could involve compliance with a collective bargaining agreement if the manufacturer has a unionized workforce.
“Nevertheless, if other alternative accommodations prove unworkable, unpaid leave should be considered,” he says.
Under the ADA, reasonable accommodations must be provided for a qualified individual with a disability. “Qualified” is defined as someone who—with or without reasonable accommodation—is found to be capable of performing the essential functions of a job.
Historically, reasonable accommodations under the ADA have been found to include such options as:
• Eliminating non-essential job duties.
• Physically modifying the way the job is performed.
• Providing aids to assist the employee with the job.
• Altering a schedule, transferring to a light duty position if light duty is offered.
• Transferring to an open position.
• Providing an unpaid leave of absence.
Keep in mind the fact that the word “reasonable” comes before accommodation. An employer does not need to provide any accommodation requested by an employee if it turns out to be too costly or impractical. In the way the law has been applied over the years, employers are expected to communicate honestly with a worker and try to work out a mutually agreeable reasonable accommodation that allows the employee to perform essential job functions.
If the employer finds the suggested accommodation will create an undue hardship and rejects it, that could be the start of another, potentially expensive controversy if the employee then chooses to persist in pressing his or her case.
“While the standard for what is an undue hardship may vary based on the employer’s size and available resources, undue hardship can be a high standard to meet in some circumstances,” Moberg notes.
“This may be even more so in a manufacturing setting, where an employer may have numerous employees and substantial investment in property, equipment, materials, and so on. In those cases, therefore, it can be difficult for a manufacturer to claim a proposed accommodation is an undue hardship because of cost.”
EEOC Says Yes
The federal ADA guidance on the matter that was published by the Equal Employment Opportunity Commission (EEOC) states that an unpaid leave is a form of reasonable accommodation an employer should consider.
While EEOC guidance does not have the force of law, because this federal agency is responsible for enforcing the ADA, EEOC guidance is often viewed by courts as persuasive. However, Moberg admits that how long an employer must allow an employee to be off work is not addressed in the guidance and should be applied on a case-by-case basis using an individualized assessment.
Another point to remember is that the EEOC and many federal courts have taken the position that an indefinite leave of absence with no reasonable estimate of when the employee can return to work is considered an undue hardship.
But what about when an employee’s medical provider says an employee may need many weeks, or even months, off from work to recover before the employee is released to return to work? “Those are difficult and fact-specific questions that depend on the nature of the employer, the employee’s job, and how long the employee may need to be off,” Moberg says.
Making unpaid leave even more confounding for manufacturers is the fact that the federal appellate courts do not agree on the standard to be applied to unpaid leave, he adds, pointing to a recent decision. The U.S. Seventh Circuit Court of Appeals (with jurisdiction over Illinois, Indiana and Wisconsin) upheld last December its decision that a multi-month non-Family and Medical Leave Act leave of absence is not a reasonable accommodation under the ADA.
The court said this was because an extended leave of absence does not give a disabled employee the means to work. Instead, it excuses the employee from working, which the Seventh Circuit ruled is not an alternative contained in the ADA.
However, other courts of appeal are split on this issue, with some courts tending to agree with the Seventh Circuit, while others appear to require employers to consider offering longer unpaid leave if doing so eventually will allow an employee to resume working.
Whether a manufacturer can offer an unpaid leave and for how long are complex questions that require analyzing specific facts of each situation, especially in cases where a labor agreement is in effect, Moberg stresses.
“Due to the need to staff shifts, it can be challenging for manufacturers to offer unpaid leave as an accommodation,” he explains. “At the same time, given the difficulties some manufacturers face in recruiting and retaining skilled workers in the 21st Century, keeping a skilled but temporarily disabled employee by offering a period of unpaid leave as a reasonable accommodation may be preferable in the long run.”
Given the potential for prolonged litigation reasonable accommodation cases carry with them, it’s no surprise that Moberg recommends employers consider consulting employment counsel to help address these difficult issues.