Leave of Absence as a Reasonable Accommodation

Definite or Indefinite Leave of Absence as a Reasonable Accommodation

A common question a California employer faces is for how long to provide an unpaid leave of absence as a reasonable accommodation to a disabled employee. Generally, a finite leave of absence may be a reasonable accommodation, if it is likely that the employee will be able to perform his or her duties at the end of the leave. Under most circumstances, an indefinite leave of absence is not a reasonable accommodation. This makes sense as it would be unfair to expect employers to wait indefinitely wait for a disable employee to return to work.

Court Rulings

Some courts have ruled, however, that there is no per se rule that an indefinite leave of absence is not a reasonable accommodation, and extensions of leave of absence may be reasonable under some circumstances.  An employer’s size and resources may affect its obligation to provide “indefinite” leaves of absence as reasonable accommodations. For example, in the case of a very large employer, with high turnover and fungible employees, the employer may be required to provide an indefinite leave of absence, if the leave would enable an easily replaceable employee to perform the essential functions of the position eventually, and the employer will not incur significant expenses as a result of maintaining the employee in the status of an employee.

The courts may consider several factors including whether the employee indicates when he or she can return to work; whether the employee’s absences from work are erratic and unexplained; whether the employee will be able to perform his duties when he returns; whether the employer hired the employee to perform a specific task; and whether a leave poses an undue hardship given the circumstances of the situations.

Both employers and employees should remember that “reasonableness” of a request for an extended leave depends on specific circumstances as “each case must be scrutinized on its own facts.”

• See Disability Discrimination Practice Area