Legal E-Bulletin - January 2003

Leave of Absence as a Reasonable Accommodation under the ADA

Employees with disabilities who need a leave of absence from work because of their disability often seek employee leave as a reasonable accommodation under the ADA. Employers and employees may naturally think of a request for leave as an issue of accommodation under the ADA. The ADA, however, may not provide the needed leave. A leave of absence for a serious illness or injury also raises issues under the Family and Medical Leave Act and workers compensation rights (if the disability illness or injury arose in the course and scope of employment). The questions are often when does each law apply and how do the different laws relate to one another.

A. LEAVE OF ABSENCE UNDER THE ADA.

1. Leave of Absence Is Permitted by Statute and Regulations.

The ADA implementing regulations, the legislative history and the technical assistance manual all indicate that a leave of absence is a form of reasonable accommodation. However, the statutory language only implies that leave is a form of reasonable accommodation.

a. The Statute Implies That Leave of Absence Is a Reasonable Accommodation.

The ADA imposes on employers the obligation to provide reasonable accommodations to qualified employees and applicants. The right to a reasonable accommodation is clearly stated in the statute. Yet, the right to a leave of absence as a reasonable accommodation is only implied from the examples of accommodations in the statute. The statute does not explicitly include employee leave as an example of a reasonable accommodation. See 42 U.S.C. 12111(9).

The examples of reasonable accommodations listed in the statute are: (1) job restructuring, (2) part-time employment, (3) modified work schedules, (4) reassignment to a vacant position, (5) Acquisition or modification of equipment or devices, (6) appropriate adjustments or modifications of examinations, training materials or policies, (7) the provision of qualified readers or interpreters. 42 U.S.C. 12111(9)(B). Employee leave of absence is inferred from these examples because the listed examples involve reducing the number of hours or days an employee with a disability is required to work. Therefore, a leave of absence as a form of reasonable accommodation is necessarily implied. See 29 C.F.R. §1630 et seq, § 1630.2(o) and 29 C.F.R. Ch. XIV, Appendix of Interpretive Guidance, p. 329-30.

b. Legislative History Indicates the Leaves of Absence Can Be a Form of Reasonable Accommodation.

While the statute merely implies that leave is a form of reasonable accommodation, the legislative history makes it more plain. The legislative history from both the House of Representatives and the Senate indicates that the examples of reasonable accommodations which involve reducing or rescheduling the hours or days an employee is required to work naturally involve granting periods of leave as a form of reasonable accommodation. See House Education and Labor Committee Report 101-488, 101st Congress 2d Session, p. 62 -63, reprinted in U.S. Code and Admin. News, 101, Vol. 4. p. 339-340, 344; 344-45 and 457; and Senate Report 101-116,101st. Congress 2d Session, p. 31.

The House Report provides that "Reasonable accommodation may also include providing additional unpaid leave days, if such provision does not result in an undue hardship for the employer." House Education and Labor Committee Report, p. 62. The Senate report makes only one reference to employee leave as a reasonable accommodation, stating "This legislation does not entitle the individual with a disability to more paid leave time than non-disabled employees." Senate Report at p. 31. The reference leaves open the possibility that unpaid employee leave in excess of the amount of leave ordinarily offered to employees is a form of reasonable accommodation in the appropriate circumstances.

c. The Regulations View Leave as a Reasonable Accommodation.

In addition to the statutory language and the legislative history, the ADA's implementing regulations offer guidance as to whether employee leave is a form of reasonable accommodation. The regulations are more definitive than the statute itself. 29 C.F.R. § 1630.2(o), Ch. XIV, Appendix of Interpretive Guidance, p. 329-330. The regulations list the identical examples of reasonable accommodations listed in the statute, but the interpretive guidance accompanying the regulations specifically identifies providing leave as a form of reasonable accommodation to an employee with a disability. Id. The guidance states that allowing an employee to use accrued paid leave or providing additional unpaid leave may be a reasonable accommodation. Id. at p. 344.

d. The Technical Assistance Manual Also Views Leave as a Reasonable Accommodation.

The EEOC Technical Assistance Manual contains the clearest expression of whether employee leave is to be provided as a reasonable accommodation. EEOC TECHNICAL ASSISTANCE MANUAL ON EMPLOYMENT PROVISIONS (TITLE I) OF THE AMERICANS WITH DISABILITIES ACT OF 1990, (Commercial Clearing House 2002).

The Technical Assistance Manual states "flexible leave policies should be considered as a reasonable accommodation when persons with disabilities require time off from work because of their disability." Id. at p. III-23. An employer is "not required to provide additional paid leave as an accommodation, but should consider allowing the use of accrued leave, advanced leave, or leave without pay." Id. The Technical Assistance Manual is consistent with the legislative history and regulations that provide that persons with disabilities are not to receive benefits that exceed those available to non-disabled persons, but clearly indicates that employee leave without pay is a relatively cost free method of accommodation.

e. Leave of Absences Are Within the Range of Possible Accommodations.

The statute, implementing regulations, interpretive guidance and legislative history all indicate that an individual with a disability may be entitled to leave as a reasonable accommodation. Like all other forms of accommodation, however, a leave of absence must enable the employee to perform the essential job functions of the job and must not impose an undue hardship on the employer. See 42 U.S.C. 12111(10), 42 U.S.C. 12112(b)(5)(A) and (B), and 29 C.F.R. §1630.2(p).

2. Practical Barriers to Obtaining Leave as a Reasonable Accommodation.

A leave of absence is within the range of possible accommodations under the statute and regulations. In practice, however, a leave of absence is surprisingly difficult to obtain under the ADA. It is difficult to provide a leave of absence and at the same time meet the ADA's other requirements that a claimant be able to perform the essential functions of the job and that the leave not impose an undue burden.

a. Performing Job is at Odds with Being Absent.

Only persons who are both qualified and disabled have standing to assert a claim of employment discrimination under the ADA. An individual is qualified for a job if he is capable of performing the essential functions of the job, either with or without a reasonable accommodation. If the individual is not capable of performing the essential job functions, then he is not qualified for the position.

(I) Regular and Predictable Attendance Is Presumed to Be an Essential Function of All Employment.

The case law has established a fundamental rule that regular and predictable work attendance is a presumed essential function of every job. If an individual's disability causes him to be unable to regularly and predictably report for work, then that individual is presumed to be unqualified for the job. The court in Moore v. Payless Shoe Source, Inc., 187 F.3d 845 (8th Cir. 1999) observed that "An employee who is unable to come to work on a regular basis is unable to satisfy any of the functions of the job in question, much less the essential ones." This rule has been widely applied by federal courts. See for example, McDonald v. Com. of Pa., 62 F.3d 92 (3rd Cir. 1995); Tyndall v. National Education Centers, 31 F.3d 209, 213 (4th Cir. 1994)(Holding that regular and predictable attendance was an essential function of employment that can be reasonably accommodated because leave would compound the problems caused by absences); Manuel v. West Lake Polymers Corp. 66 F.3d 758 (5th Cir. 1995); Wimbley v. Bolger, 642 F. Supp. 481, 485 (W.D. Tenn. 1986), aff'd, 831 F.2d 298 (6th Cir. 1987);Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847 (8th Cir. 2002); Jackson v. Veterans Administration, 22 F.3d 277, 278-79 (11th Cir. 1994) (Six days of absences found to be a legitimate basis for discharge because regular and predictable attendance is as a matter of law an essential function of almost every job); Carr v. Reno, 23 F.3d 525, 529 (D.C. Cir. 1994).

(ii) Presumption Can Be Rebutted.

While regular and predictable attendance is presumed to be an essential function of every job, that presumption can be rebutted. In Ward v. Massachusetts Health Research Institute, Inc., 209 F.3d 29 (1st Cir. 2000), a full time data entry employee had severe arthritis and experienced some tardiness. The employer considered the tardiness to exceed its expectations. When Ward requested a modified work schedule to accommodate his stiffness and pain in the mornings, the employer fired him. The employer relied upon the presumption that regular and predictable attendance is an essential job function, and contended that Ward was unqualified because he could not regularly and predictably arrive at work on time.

Ward presented substantial evidence that the nature of the job did not require predictable arrival time. He showed that unpredictable tardiness did not affect work performed while on the job. The court found that the employee's requested accommodation of a flexible schedule was reasonable because regular and predictable attendance is not an essential function of the data entry position. The court also found that the employer failed to show that an open-ended schedule would be an undue burden. The court found that working a full 7 ½ hour workday was essential to the job, but a regular and predictable arrival time was not. The open schedule requested by Ward allowed him to perform the essential function of working a full day.

Ward is significant because it holds that the presumption in favor of regular and predictable attendance can be effectively rebutted with evidence that regular and predicable attendance is not essential to the performance of the job in question and with evidence that irregular attendance does not pose an undue burden on the employer.

b. Alternative Work Place Exception to the Presumption.

Another exception to the presumption that regular and predictable attendance is an essential function of every job is emerging. In Darby and in Nesser, the courts considered evidence that the job functions could be performed by the employee at home with suitable computers or telephone equipment. See Darby v. Bratch, 287 F.3d at 673, and Nesser v. Trans World Airlines, Inc., 160 F.3d 442 (8th Cir. 1998). In these cases the evidence showed that the job functions could be effectively performed at home or other places. This evidence was sufficient to rebut the presumption that a worker is unqualified solely because he is unable to report for work at the customary work place.

Merely showing that the work can be performed at home is not enough. The employee must still show that he can perform the essential functions of the job from home. This may require evidence that shows he can regularly and predictably perform the work at home, that he can be adequately supervised in that setting and that he can otherwise meet the employers legitimate expectations.

For example, in Vande Zande v. State of Wis. Dept. of Admin., 44 F.3d 538 (7th Cir. 1995), a employee with paraplegia requested to work from home during the times that she suffered from pressure ulcers. Pressure ulcers caused Vande Zande to stay home for eight weeks, during which time she requested a computer to work from home. The employer declined the request. After holding that pressure ulcers were a disability under the ADA, the court went on to hold that employers, as a general rule, are not required to accommodate a disability by allowing disabled workers to work from home by themselves without supervision. The court did not have sufficient evidence to conclude that work at home could be performed with adequate productivity and supervision to meet the employers legitimate expectations. See Tyndall v. National Education Centers, Inc., 31 F.3d 209 (4th Cir. 1994)(Holding that regular and predictable attendance was an essential function of employment that cannot be reasonably accommodated because leave would compound the problems caused by absences), and Law v. United States Postal Service, 852 F.2d 1278 (Fed. Cir. 1988)(Holding that attendance is a minimum function of any job).

c. Despite Exceptions Leave of Absence Still Difficult to Obtain.

Despite the exceptions in Ward, Darby and other cases, the presumption that regular and predictable attendance is an essential function of all jobs is difficult to rebut. While Ward is significant for the principle that the presumption of regular attendance is rebuttable, it is still important to note that in Ward the employee needed a modification in his arrival time and did not require an extended leave of absence. The exception to the presumption in Ward is most useful in situations where the employee needs a modified schedule as a reasonable accommodation. Ward is less useful in situations where the employee needs leave from work for several consecutive days. Because the court found in Ward that working the requisite hours per day was the essential function of the job, the exception may not be broad enough to permit a leave of absence as an accommodation.

The exception that permits work at home also is not broad enough to provide a basis for obtaining a leave of absence as a reasonable accommodation. In the cases that allowed the employee to work at home, the evidence showed that the alternative location was suitable for work. The employee was not at the regular work place, but was still at work rather than on leave of absence. In cases like Vande Zande and Tydall, working at home was not permitted because where there was no assurance that the worker would be capable of regular and predictable work at home. Consequently, the presumption that all jobs require regular and predictable attendance - even in an alternative work place - is a significant impediment to obtaining leave as a form or reasonable accommodation under the ADA.

3. Limited Leave Is Permitted for the Treatment and Assessment of a Disability.

a. Short and Definite Periods of Leave Permitted.

Courts have found that a limited amount of leave for the purpose of treatment or assessment of a disability can be a reasonable accommodation. Rascon v. U.S. West Communications, Inc., 143 F.3d 1324 (10th Cir. 1998)(citing Hudson v. MCI Telecomms. Corp., 87 F.3d 1167 (10th Cir. 1996)). However, these cases have been careful to require some reasonable degree of certainty in the amount of leave obtained. The courts have established the rule that an indefinite period of leave is not reasonable and an employer is justified in terminating an employee who does not have a reasonable expectation of returning to work in a determinable time. Watkins v. J&S Oil Company, Inc., 164 F.3d 55 (1st Cir. 1998); Monette v. Electronic Data Systems, 90 F.3d 1173 (6th Cir. 1996); Rogers v. International Marine Telecommunications, 87 F.3d 1167 (10th Cir. 1996).

However, where the facts show that an employee needs a specific amount of leave and that amount of time is short enough to be within the range of reason, the courts have upheld the request for leave. For example, in Criado v. IBM Corporation, 145 F.3d 437 (1st Cir. 1998), an employee required a leave of absence for treatment of anxiety disorder and depression. The employer granted the leave until a specified date. However, the employee was not well enough to return to work on that date. She was terminated for not returning to work after an authorized period of leave. The employee had requested an extension of the leave period, but the request was denied. The court found that the request for extended leave could be a reasonable accommodation, depending upon the facts of the particular job. See also Rodgers v. Lehman, 869 F.2d 253 (4th Cir. 1989) and Kimbro v. Atlantic Richfield Co., 889 F.2d 869 (9th Cir. 1989).

b. Exceptions or Extensions of Existing Leave Policies Most Successful.

The claims for leave that have been successful tend to be based on reasonable exceptions or extensions of the employers established employee benefit leave programs. For example, in Carlson v. Inacom, 885 F. Supp. 1314, 1320 (D.Neb. 1995), the court declined to follow the presumption that regular and predictable attendance is an essential function of all employment and instead closely reviewed employers leave policies.

The evidence in Carlson showed that although the employee had missed 17 3/8 days of work in a year, she was entitled to 16 days of paid leave under the employer's leave policy. There was no evidence that the absences were disruptive to the workflow or to other employers. Moreover, there was no policy limiting unpaid leave. Consequently, granting an additional 2 days of unpaid leave to the regular paid leave was considered reasonable. Denying the request was unreasonable. Because Inacom had previously provided Carlson with unpaid leave after exhausting her paid leave, the court concluded that there was no specific amount of attendance that Inacom considered to be an essential function of her job.

c. ADA Offer Few Opportunities for Leave of Absence.

The ADA does not offer a great deal of protection to an employee who needs a leave of absence due to disability for several weeks or months. The employee in need of leave may encounter several difficulties. First, the employee's inability to report for work during that period may be a sufficient basis for the court to find the employee is not qualified for the position and therefore has no standing to even assert a claim under the ADA. A civil action that alleges the employee required or requested leave due to an inability to report to work will likely invite a motion to dismiss, which will likely be granted unless the pleadings also allege that regular and predictable attendance is not required or that the employer's policy does not preclude an unpaid leave of absence.

Even if the ADA claimant can avoid a motion to dismiss, the employer may still assert as a defense that the employee is unqualified because of his need for leave. The employee is in a particularly difficult position when seeking leave as a form of reasonable accommodation. An accommodation is by definition a modification or adjustment in the job that enables the employee to perform the essential functions of the job. If the employer grants a leave of absence, then the employee is less able to perform the job because he is not reporting to work at all. Whether or not a leave of absence is available will depend on the unique circumstances of the particular job. An employee in need of leave may obtain a more certain result under the Family and Medical Leave Act.

B. THE FAMILY AND MEDICAL LEAVE ACTS RELATIONSHIP TO THE ADA.

Because leave as a reasonable accommodation under the ADA is fraught with difficulties, the better approach may be to seek leave under the Family and Medical Leave Act (FMLA). The different eligibility standards make it easier for a person to qualify for leave under the FMLA than under the ADA. Also, FMLA leave may be available in instances where ADA leave is not. The FMLA generally entitles employees who work for employers with 50 or more employees to take up to twelve weeks of leave upon the birth or placement of a child, when the employee is needed to care for a child, spouse or parent who has a serious health condition, or when the employee is unable to perform his job because of his own serious health condition.

1. Differences in Leave under the ADA and FMLA.

a. FMLA Does Not Require Proof of Ability to Perform Essential Job Functions.

Unlike the ADA, the FMLA does not require the person seeking leave to demonstrate that they are qualified for the position. In Jessie v. Ceneter Health Care Center, 926 F. Supp. 613, 616, n. 2 (E.D. Ky. 1996), the plaintiff asserted a claim under both the FMLA and the ADA. The court noted that to obtain ADA leave the claimant must show that the claimant was (1) disabled as defined in the statute; (2) qualified for the job either with or without a reasonable accommodation; (3) discharged from employment; and (4) replaced by a non-disabled person. However, the FMLA claim required the claimant to show only that she worked for 12 months and 1250 hours and had a serious health condition on the date the leave commenced. Not only are there fewer elements in an FMLA claim, but the elements are more easily proven with objective evidence.

The principal eligibility criteria under the FMLA is job tenure, rather than job qualification as in the ADA. Under the ADA, an employee must first demonstrate that he is able to perform all of the essential functions of the job before he is covered by the ADA and eligible to receive a reasonable accommodation. In contrast, the FMLA's eligibility standard requires that the employee shall have "been employed for at least 12 months by the employer and during the twelve months before requesting leave the employee worked at least 1,250 hours."

The tenure based eligibility standard requires only proof that the employee has served in employment for the appropriate length of time and for the prescribed number of hours. This difference in eligibility standards makes claims for FMLA leave much easier than a request for leave under the ADA. The FMLA claimant need not contend the presumption that regular and predictable attendance is an essential job function. This presumption defeats many claims for leave under the ADA because the ADA claimant must show that he is able to perform his essential job functions despite his need for a leave of absence. This is often an impossible task because showing the need for leave is often inconsistent with showing that he is capable of performing all essential functions. The FMLA, on the other hand, requires that the claimant be unable to perform his job functions to be eligible for FMLA leave. FMLA leave will be available to an employee even if ADA leave is unavailable due to the presumption favoring regular and predictable attendance or other reasons.

b. ADA Applies at Times When FMLA Does Not.

While tenure based eligibility requirement under the FMLA may be easier to apply, FMLA is simply not available to employees with short employment tenure. If the need for leave arises before the employee has worked 1250 hours, he is not eligible for FMLA leave. The ADA is generally applicable at all stages of employment. An employee whose need for leave arises before he has worked 1250 hours may have only the ADA under which to seek the needed leave.

In Plant v. Morton International, Inc., 212 F.3d 929 (6th Cir. 2000), an employee was injured and was absent from work on leave. The leave was not designated as FMLA leave. After returning to work, the plaintiff aggravated his injures on the job and took another paid leave of absence, but was terminated during the leave. The court found that the plaintiff did not have an ADA claim because he was unable to perform his job. Yet the court concluded that the plaintiff may have been entitled to twelve additional weeks of FMLA leave because the employer had not notified the employee that previous periods of leave would be counted as FMLA leave. Any paid or unpaid employer provided leave can be counted towards the twelve weeks FMLA leave, but the employer must notify an employee that the leave with be treated as FMLA within two days of learning that the leave would qualify as FMLA leave. 29 C.F.R. § 825.208. Because the employer had not notified Plant that his leave was being counted towards his FMLA leave, none of the prior leave counted against the 12 weeks of leave permitted by the FMLA. The court found that plaintiff did not have an ADA claim because he failed to show that his impairment substantially limited a major life activity. FMLA may be available even when leave as a reasonable accommodation under the ADA is not.

Similarly in Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847 (8th Cir. 2002), a bank employee took leaves of absence to treat her depression. The employer twice disciplined her with probation for excessive absences. During her second probation period she missed work because of transportation problems and was terminated. She sued claiming violations of the ADA and FMLA. The court found that her ADA claim failed because she could not show that she could attend work. She therefore failed to show that she was qualified. Even with the requested accommodation of leave she would not be able to attend work. However, the court found that there was enough evidence to raise a fact issue of whether she had properly requested FMLA leave. Even though the ADA claim was not successful, the employee was still able to proceed with her claim for FMLA leave.

c. Time Spent on ADA Leave Cannot Be Counted Toward FMLA Eligibility

If an employee has received leave as a reasonable accommodation under the ADA, that amount of time on ADA leave (or any other form of leave) cannot count towards the 1250 hours of work necessary to qualify for the FMLA leave. An employee only gets credit for hours of service toward FMLA eligibility if the employee actually worked those hours, even if the leave was paid leave for which the employee was compensated. The FMLA applies the Fair Labor Standards Act principals. 29 U.S.C. §2611(2)(C)(section of the FMLA that adopts standards under FLSA). The sections on the calculation of hours served provides that "payments made for occasional periods when no work is performed due to vacation, holiday or illness and other similar causes are not considered compensation for 'hours of employment.'" 29 U.S.C. §207(e)(2). If an employee is able to take leave as a reasonable accommodation, whether paid or unpaid leave, the hours on leave are not counted as hours for determining the hours worked in the previous year. Robbin v. Bureau of National Affairs, Inc., 896 F.Supp. 18, 21 (D.D.C. 1995).

d. ADA and FMLA Cover Different Sized Employers.

Although seeking leave under the FMLA avoids the presumption that regular and predictable attendance is an essential function of every job, not all employees covered by the ADA are also covered by the FMLA. The FMLA applies only to employers who have fifty or more employees. 29 U.S.C. §2611(4). The ADA covers employers with fifteen or more employees. 42 U.S.C. §12111(5). Consequently, there are substantially fewer employees covered by the FMLA then those covered by the ADA.

e. FMLA Claims not Subject to Defense of Undue Hardship.

Another significant difference between the FMLA and the ADA is that FMLA leave is an entitlement that is typically not subject to the defense of undue hardship, which is a common defense to ADA reasonable accommodations. The undue hardship defense under the FMLA is limited to circumstances involving schoolteachers and highly compensated employees. See 29 U.S.C. §2618 and 29 C.F.R. § 825.60et seq. An eligible employee is entitled to leave by demonstrating that the leave will be used for a purpose specified in the Act and meeting the certification requirement. 29 U.S.C.§2612, see also Jessie, 926 F. Supp. at 616. The employer is obligated to provide the employee with leave under the FMLA regardless of the inconvenience that the employer may experience. The employee's rights to take leave when all the notice and certification prerequisites are met is absolute and is not subject to any superseding factor such as cost or difficulty. 29 U.S.C.§2612; see also Brannon v. Oshkosh B'Gosh, Inc., 897 F. Supp. 1028 (M.D. Tenn. 1995).

2. Leave for Family Members' Serious Health Conditions under the ADA and FMLA.

Leave under the FMLA is also more broadly available to employees than leave under the ADA because the FMLA leave is available for the serious health condition of a family member. 29 U.S.C. §2612(d)(2)(B) and 29 C.F.R. §825.114. The ADA has a related provision that prohibits an employer from discriminating against a qualified individuals because of the known disability of an individual with whom the qualified individual is known to have a relationship or association. 42 U.S.C.§12112(b)(4) and 29 C.F.R. §1630.

While the family leave provisions of the FMLA and the relationship or association provisions of the ADA are related, the two laws are significantly different. The principal difference is that the ADA does not require an employer to grant leave or other forms of reasonable accommodation to a non-disabled employee to care for a family member with a disability or associate. Tyndall, 31 F.3d at 214; 29 C.F.R. § 1630.8, Appendix of Interpretive Guidance; Senate Report on the ADA at p. 30; House Labor Report on the ADA at 61-62; House Judicial Report on the ADA at 38-39. The employer's duty to provide reasonable accommodations under the ADA extends only to its employees with disabilities, and does not extend to their family members. However, the FMLA grants a specific right for non-disabled employees to take leave for the care of a seriously ill spouse, parent or child - or to care for a newly born or placed child of the worker.

C. WORKERS COMPENSATION AND RETURN TO WORK.

1. The Relationship Between Workers Compensation and the ADA and FMLA.

When an illness or injury occurs in the course and scope of employment, workers compensation rights are also involved in any leave needed for that condition. Some conditions that require leave may not be severe enough or permanent enough to be meet the definition of disability under the ADA. Also, the workers illness or injury may be so severe that they are not qualified for the job during a period of treatment or convalescence. Consequently, a worker may have no standing to assert an ADA claim, yet may nevertheless have a right to time off for treatment, assessment or convalescence under the workers compensation scheme.

The ADA and workers compensation schemes typically overlap when a worker is returning to work after a period of leave due to illness or injury. The person will most like be disabled under the ADA, at least because of a record of disability or because the employer regards them as being disabled. Disputes typically arise when the employee attempts to return to work, but the employer either prevents the return or fails to accommodate the employee upon return.

In McGregor v. National Railroad Passenger Corporation, 187 F.3d 1113 (9th Cir. 1999), the employer maintained a "100%-healed policy" regarding workers returning from workers compensation leave. The policy required a worker injured on the job to show that they had fully recovered from the injury before they would be permitted to return to work. The Court held that such a policy was a per se violation of the ADA because it discriminates against qualified individuals with disabilities. The policy permitted the employer to evade the ADA obligation to make an individual assessment of the qualifications for the job and avoid the obligation to provide a reasonable accommodation, which violated the ADA.

An employer cannot require that the employee be 100% healed before returning to work. If an employee is disabled and has a residual impairment in his ability to perform his job, the employer must assess whether a reasonable accommodation would enable the employee to perform the essential functions of the job. See also, Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998); Weigel v. Target Stores, 122 F.3d 461 (7th Cir. 1997); Norris v. Allied-Sysco Food Servs., Inc., 948 F.Supp. 1418 (N.D. Cal. 1996); Heise v. Genuine Parts Co., 900 F.Supp. 1137 (D.Minn. 1995); and Hutchinson v. United Parcel Serv, Inc., 883 F.Supp. 379 (N.D. Iowa 1995).

2. ADA Accommodation and Return to Work After a Leave of Absence.

a. Reasonable Accommodations Can Facilitate a Return to Work.

Although the ADA is not particularly useful as a means of obtaining a leave of absence, it is useful when the worker returns from a period of leave. In Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944 (8th Cir. 1999), a restaurant manager required a restricted work schedule due to an injury. The employer fired the manager, and the employee claimed that she ought to have been accommodated under the ADA either by creating a permanent co-manager position for her or by giving her the shift manager position that became vacant when the shift manager was promoted to the plaintiff's former position of unit manager. The court held that creating a permanent co-manager position for plaintiff is not a reasonable accommodation because an employer need not reallocate or eliminate the essential functions of a job to accommodate an employee with a disability. However, reassigning plaintiff to the shift manager position could be a reasonable accommodation because the position was vacant and was a possible accommodation under the ADA. In this case the ADA was useful as the means of accommodating the employee's return to work after a period of leave.

b. Limits to the ADA'S Ability to Accommodate an Employee's Return to Work

There are limits to the ADA's ability to accommodate an employee's return to work. In Terrell v. USAir, 132 F.3d 621 (11th Cir. 1998), the plaintiff developed carpal tunnel syndrome and took medical leave and was also accommodated with a reduced work schedule. The employer eliminated part-time positions for her class of employment and placed her on an unpaid medical leave of absence. The plaintiff claimed that the employer should have accommodated her with a part-time schedule rather then place her on unpaid medical leave. The court held that although part-time work is listed as a potential reasonable accommodation under the ADA, it is not always a reasonable accommodation. In this case, it was not a reasonable accommodation because the employer had eliminated part-time positions from the company at the time plaintiff was put on medical leave. Placing the employee on a part-time schedule was equivalent to creating a part-time position solely for the plaintiff, which it is not obligated to do.

Similarly In Pond v. Michelin North America, Inc., 183 F.3d 592 (7th Cir 1999), an employee with Hepatitis took a nine-month temporary disability leave from her job as Battery Operator. The leave was available through the employer's disability leave policy, but was not available as a reasonable accommodation under the ADA because the employee was incapable of work during the leave period. At the end of the leave, was not released to return to work in her previous position as Battery Operator. She requested an alternative position that she could perform with her medical restrictions. However, none of those other positions were vacant. The plaintiff had enough seniority to allow her to bump a less senior employee from the alternative position, and she requested that she be allowed to exercise her seniority right to bump the junior employee from the position as a reasonable accommodation for her disability. The Court held that an employer is not required to bump an employee from an occupied position in order to accommodate an employee with a disability. It held that Congress never intended for other employees to lose their jobs to accommodate disabled coworkers.

c. Observation on Seniority and ADA Accommodation.

Pond makes an interesting companion to the line of authority that holds that it is fundamental unreasonable to allow less senior employees to fill vacancies that more senior employees have a right to fill under a collective bargaining agreement. Pond together with these other cases can be construed to mean that an accommodation will be judged to be unreasonable if it interferes with any another employees substantive employment rights that arise from a collective bargaining agreement or other established form of awarding employee seniority.

D. CONCLUSION

The ADA is perhaps the least effective means of obtaining a leave of absence. The employees inability to work that necessitates the leave also tends makes him unqualified for the job and disqualifies him for ADA protection. Aside from being disqualified, the request for a leave of absence is typically subject to a defense of being unduly burdensome. The ADA, however, can be effective to obtain extensions or modification to the employers existing leave policies. The existence of a leave policy is evidence that regular work attendance is not essential to the job, and modifications or extensions of that leave policy may be reasonable in certain circumstances.

The FMLA is a better vehicle for obtaining leave because it is not fraught with the technical complication of obtaining leave under the ADA. The ADA, however, has a significant role in accommodating an employee's return to work after a period of leave. ADA accommodations can facilitate the employee's return to work in an alternative position, or facilitate the return to the position previously held with necessary accommodation in that job.

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