LABOR SECRETARY FINALLY CONFIRMED

One of the more common and difficult issues facing employers today is how long a leave of absence must be extended for an employee with a disability.  At one time it was generally considered appropriate to have an administrative separation policy, to set an objective "cut-off" date for any further extensions of leave.  In recent years such objective administrative separation policies have been increasingly attacked by the EEOC and the courts, leading most employers to recognize exceptions to the normal separation policies in order to extend a leave to accommodate a disability.

A recent federal appeals court ruling gives employers some encouragement that there is some end to this process.  Delgado-Echevarria v. AstraZeneca Pharm., LP, No. 15-2232 (C.A. 1, 5/2/17).  The First Circuit noted that granting a leave to an employee with a disability is often a reasonable accommodation under the Americans With Disabilities Act (ADA).  However, the court said that the ADA does not require an employer to grant indefinite leave and hold a job open if an employee has no estimate of when he or she will be able to work again.

The plaintiff had been out on leave for about five months, but after inquiry the plaintiff’s physician said her symptoms would not clear up for another 12 months and she might be able to return to work then.  The court found that the plaintiff failed to meet her burden of showing a 12-month leave extension would be reasonable.  Specifically, the plaintiff presented no evidence that the additional leave would "likely enable" her to return to work.  Further, an additional 12-month leave, on top of the five months already taken, could not meet the "facially reasonable accommodation" test, according to the court.  The court noted that other courts, confronted with similar issues, have found that even shorter extensions were not reasonable.

Editor’s Note: Although the employer won this particular case, these types of cases are controversial and advice of counsel is recommended.  Employers would be wise to write administrative separation policies with provisions allowing for exceptions for reasonable accommodations if the employee makes a timely request prior to the expiration of the leave.  Further, it is also helpful to write a "reminder" letter to employees indicating their leave is about to expire and they will be separated unless they make a timely request for reasonable accommodation that would not result in an undue hardship on the employer.