Having just returned from speaking at the Pennsylvania Bar Institute’s 21st annual Employment Law Institute, the No. 1 question on the mind of employers was how to deal with an employee’s request for leave under the Americans with Disabilities Act once the employee’s Family and Medical Leave Act leave has expired. The answer, like most reasonable accommodation issues, is it depends. Courts throughout the country have consistently held that unpaid leave is a form of reasonable accommodation. Unpaid leave may be an appropriate reasonable accommodation when an individual expects to return to work after getting treatment for a disability, recovering from an illness, or taking some other action in connection with his or her disability.
The U.S. Equal Employment Opportunity Commission has consistently taken the position that leave can be a reasonable accommodation. (See 29 C.F.R. Section 1630.2(o); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship, No. 915.002 (Oct. 17, 2002) at Question 16.) Likewise, the Department of Labor regulations state that a reasonable accommodation may require an employer “to grant liberal time off or leave without pay when paid sick leave is exhausted and when the disability is of a nature that it is likely to respond to treatment of hospitalization.” Further, the U.S. Court of Appeals for the Third Circuit has held that a leave of absence can be a reasonable accommodation under the ADA, reasoning that a reasonable accommodation at the present time would enable the employee to perform her essential job functions sometime in the near future, in Conoshenti v. Public Service Electric & Gas, 364 F.3d 135, 151 (3d Cir. 2004), citing Criado v. IBM, 145 F.3d 437, 444 (1st Cir. 1998).
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