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The ADA is Not a Leave Law, But Someone Forgot to Tell the EEOC

Does the ADA require employers to allow unpaid leave for accommodation when such leave doesn’t present undue hardship? This has actually been an open question under the ADA for a while, and the EEOC last year said that unpaid leave might sometimes be a reasonable accommodation; most employers would probably say that unpaid leave is not a reasonable accommodation. After all, an accommodation request can only be reasonable if the employee, “with or without reasonable accommodation, can perform the essential functions of the employment position.”1

If you’re an HR professional who thinks the only common sense answer to this question is “no,” the Seventh Circuit Court of Appeals has your back. In a recent decision, the Seventh Circuit reaffirmed its reading of the ADA, that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement.” Despite the EEOC’s argument that a long-term leave could sometimes allow an employee the chance to perform the job when the employee returns and thus might be a reasonable accommodation, the Seventh Circuit held that while short periods of time might be reasonable as tantamount to a “modified work schedule,” one of the examples of a reasonable accommodation listed in the statute, a long-term leave is never reasonable.

So, what does this all mean for employers? Aside from vindicating the good sense of every HR professional who thought the EEOC was going too far, this case also reveals that the EEOC is sticking to its guns. Because the EEOC is free to maintain an interpretation different from the Seventh Circuit, the case does not necessarily mean employers are well-advised to terminate rather than grant requests for leaves beyond the FMLA leave of 12 weeks. Also, note that even under the Seventh Circuit’s decision, there are complexities regarding what would qualify as a short leave that looks like a modified work schedule (a reasonable accommodation) and what is a long leave (an unreasonable one). In several ways, then, this case simply adds another nuance to the myriad considerations that employers must assess in dealing with employee accommodation requests. After all, disgruntled employees file complaints with the EEOC, not the Seventh Circuit.

1 42 U.S.C. § 12111(8). 

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.