March 14, 2002
Labor & Employment Alerts

Labor & Employment Alert: Medical Leave as an Accommodation Under the ADA
by Dafna G. Levi

Medical Leave as an Accommodation Under the ADA
by: Dafna G. Levi, Esq.

Envision facing one of the following scenarios:

1. Your company has no medical leave policy in place, and an employee requests either paid or unpaid medical leave to recover from a medical condition;

2. Your company does have a medical leave policy in place, and an employee who has exhausted his medical leave asks you for an extension to allow for further treatment.

Whether you must grant an employee's request in either instance may not be as simple a question as might be expected. In either situation, you must consider the implications of the employee's request under the Americans With Disabilities Act ("ADA"). Specifically, an employer must determine whether the company may be required to provide the requested leave as a form of accommodation pursuant to the ADA.


The ADA itself sets forth a demonstrative list of acceptable accommodations, but that list is far from exhaustive. 29 CFR § 1630.2. It has been determined that acceptable accommodations could include permitting the use of accrued paid leave, or providing additional unpaid leave for necessary treatment, depending upon the particular circumstances of a given case. 29 CFR § 1630 Appendix. Various courts have analyzed this issue and have reached conflicting conclusions. Generally speaking, however, courts have found that a medical leave of absence can be a reasonable accommodation, although the employer need not grant such leave if doing so would pose an undue hardship. Such leave may be appropriate to allow an employee to obtain medical treatment or recover from an illness.

Thus, under this rubric, it has generally been held that an indefinite period of medical leave is not a reasonable accommodation because the grant of such leave would cause an employer undue hardship. However, a finite leave can be reasonable accommodation provided it is likely at the end of the leave that the employee would be able to perform his or her duties.

Whether a request for leave is reasonable will turn on the facts of a given case. In general, courts look more favorably on employees who have requested leave of a specific duration in order to complete a well-defined course of treatment, as opposed to employees who simply cannot come to work. See, Haschmann v. Time Warner Entertainment Co., L.P., infra. Another significant factor considered by courts is whether the employer has in place a practice or policy of granting leaves, and the extent to which the employee has already taken leave. See, Cehrs v. Northeast Ohio Alzheimer’s Research Center, infra.

Following are brief summaries of some of the leading cases in this area:

Norris v. Allied-Sysco Food Services, Inc., 948 F. Supp. 1418 (N.D. Cal. 1996)

Plaintiff had taken disability leave due to a back injury and various ailments, and was terminated based on the expiration of her long term leave, vacation and sick time. Plaintiff sued her employer, claiming that it had failed to accommodate her request for continued unpaid leave.

The court found that unpaid leave may be a reasonable accommodation under the ADA if it does not impose an undue hardship on the employer and if it will permit the employee to eventually perform the essential functions of his position. The court further observed, however, that the ADA does not require an employer to permit an employee to take an indefinite, lengthy, unpaid leave of absence. The court concluded, however, that there should not be a per se rule that an unpaid leave of indefinite duration (or for a very lengthy period) could never constitute a reasonable accommodation under the ADA. For example, in the case of a very large employer with high turnover and many fungible employees, an unpaid leave of an indefinite or very lengthy duration could be a reasonable accommodation if the leave would enable an easily replaceable employee to eventually perform the essential functions of his position and the employer did not incur significant expenses as a result of maintaining the employee in the status of an employee.

The Norris court found that the employer in question had not set forth sufficient evidence demonstrating undue hardship: The employee’s position had been kept open for at least part of the time that the she was out on leave; the employer had allowed other employees to remain out on disability for lengthy periods of time, even after their leave had expired; and, the company had a leave policy which could be interpreted as providing that an employee would be permitted to remain on an extended leave of indefinite duration until he recovered, it became clear that he would be unable to return to work, or he resigned. 

Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999)

Wal-Mart's benefits included short-term medical leaves of absence for up to one year. Plaintiff began an extended leave of absence pursuant to that policy, and was terminated based on her alleged failure to submit leave of absence forms and because Wal-Mart claimed that it needed someone to fill her position. 

 Citing Norris, the Nunes court determined that unpaid medical leave may be a reasonable accommodation under the ADA, and that even an extended medical leave, or an extension of an existing leave period, may be a reasonable accommodation if it does not pose an undue hardship on the employer. The court further noted that whether a proposed accommodation is reasonable is a fact-specific, individualized inquiry. In this case, the court determined that the plaintiff had raised a genuine issue of material fact as to whether her medical leave was a reasonable accommodation.

Hanson v. Lucky Stores, Inc., 74 Cal.App.4th 214 (1999)

Plaintiff suffered a hand injury while on the job as a meat cutter and took a series of leaves of absence from work to recuperate. Plaintiff’s physician eventually authorized plaintiff to return to work, but indicated that he could not perform many of the tasks essential to his position as a meat cutter. Lucky offered plaintiff an alternate, part-time position in the meat department, which plaintiff refused. Lucky then terminated plaintiff’s employment.

Plaintiff alleged in his complaint that Lucky failed to accommodate his disability. The court determined that, in appropriate circumstances, a reasonable accommodation can include providing the employee accrued paid leave or additional unpaid leave for treatment. However, the court recognized, an employer is not required to offer an accommodation that is likely to be futile because, even with accommodation, the employee could not safely and efficiently perform the essential functions of the job. Thus, a finite leave of absence can be a reasonable accommodation under the ADA, provided it is likely that following the leave the employee will be able to perform his duties upon his return to work. However, it held, a reasonable accommodation does not require the employer to wait indefinitely for an employee's medical condition to be corrected. At some point, the employer may determine that the condition will not be corrected and take necessary action.

Haschmann v. Time Warner Entertainment Co., L.P., 151 F.3d 591 (7th Cir. 1998)

Plaintiff suffered from systemic lupus, which has periods of inactivity and periods in which the condition flares up. Plaintiff went out on medical leave for several weeks due to a flare-up of her condition. A few weeks after her return from leave, she relapsed and took a second leave of absence, after which she was terminated.

Defendant argued that it need not grant the second leave request because it was unreasonable insofar as there was no way to predict when plaintiff would be able to return to work. Defendant attempted to equate this situation to one in which an employer is asked to grant an indefinite medical leave. The court disagreed, and found that plaintiff’s accommodation request was for a short leave of absence, not an unlimited leave. The court noted that the employer had failed to discuss with plaintiff the type of accommodation that might be needed, available or reasonable, and had failed to engage with the employee in the "interactive process" required under the ADA to determine the appropriate accommodation under the circumstances.


Based on a review of the cases cited above, an employer must analyze carefully any employee's request for medical leave or an extension of such leave. In so doing, the employer should pose the following questions to the employee in order to obtain the information needed to make such a determination.

1. If the company requires a medical certification as a prerequisite to granting medical leave, has the employee obtained such certification?

2. What are the details of the employee's medical condition which gave rise to the request for leave? How does this affect the employee's ability to perform the essential functions of his job?

3. Does the employee expect to return to work full-time? Based on what information, and from whom?

4. What is the purpose for the extra leave the employee has requested (i.e., recovery, additional treatment)?

5. Does the employee actually expect to return to work upon the conclusion of the requested leave? If no, what is a more realistic date? If yes, why he does he have this expectation?

6. What duties does the employee expect he will be capable of undertaking upon his return to work? Will he be capable of satisfying the position's attendance requirements?

7. Will the employee require an accommodation to perform his job? If yes: Who informed him this would be the case? What type of accommodation does he anticipate he will need? For how long? 
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