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When is enough….ENOUGH? Leave as a reasonable accommodation

There has been a lot of press around the recent Seventh Circuit Court of Appeals decision for Severson v. Heartland Woodcraft, Inc., No. 15-3754 (September 20, 2017).

In that case, the court held “ADA is an anti-discrimination statute, not a medical-leave entitlement”. Since then, I have seen many blog articles with titles such as “extended leave is not a reasonable accommodation” or “multi-month leave of absence not required under ADA”. While we can learn a lot from case decisions, let’s remember that HOW we use the information from those decisions comes with a word of caution: make no mistake that what is and what is not “reasonable” under the ADA and California’s FEHA is very much dependent on a case-by-case, fact-specific analysis. There are no set time frames (for example “six months”) for when a leave definitively becomes unreasonable as an accommodation.

According to the DFEH,

“Reasonable accommodation is any appropriate measure that would allow the applicant or employee with a disability to perform the essential functions of the job.”

Via the “interactive process”, employers are expected to look at what the employee’s limitations are, or what the effect of the impairment is on their ability to do their job, and identify any “gaps” that exist between those limitations and successfully performing the essential functions of job.

The key to any accommodation being “reasonable” is that it bridges that gap. Specific to leave as an accommodation, for it to be “reasonable” it must be the path back to being able to do the job. Leave can often be extremely effective as an accommodation for individuals recovering from a surgery or other procedure, participating in a recovery program, or simply continuing to heal from an injury or illness. When the leave becomes prolonged or unpredictable, employers must continue the interactive process to determine if additional leave will ultimately result in the employee returning back to work. This requires discussions with the employee (and documentation from their doctor) about how much time off is ultimately anticipated, and input on whether or not more time off will realistically support the employee in returning to work in a set time period.

Depending on a combination of factors including how much time the employee has already had off, what they and their doctor anticipate regarding additional time, and the employer’s operational needs, a decision can then be made about whether or not to continue to use leave as an accommodation. It is also important not to look as leave as the ONLY alternative. Rather than accepting documentation from doctors that simply states “off work”, use the interactive process to get a clearer picture of exactly what the employee can and cannot do so that other accommodations can be considered as part of the plan to support the employee is performing their job (or other jobs within the organization). This approach will yield more positive outcomes and better support compliance with disability laws.

For more information and strategies on determining whether leave (and other accommodations) are reasonable as you navigate through the interactive process, join us for our in-depth training on 10/24/17.

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