Dive Brief:

• An employee's request for a four-week extension to a 16-week medical leave wasn't necessarily an unreasonable request, the 9th U.S. Circuit Court of Appeals ruled, reviving the worker's lawsuit (Kachur v. NAV-LVH dba Westgate Las Vegas Resort & Casino, a Nevada limited liability company, No. 19-16251 (9th Cir. June 8, 2020)).
• After undergoing knee surgery and taking 16 weeks off work, Kenneth Kachur requested an additional four weeks of leave, the court said. He was terminated and sued, alleging the employer failed to reasonably accommodate his disability, in violation of the Americans with Disabilities Act (ADA). The district court granted summary judgment to the employer, finding that Kachur's request was unreasonable "because he was unable to provide any assurance as to the end date of his leave."
• On appeal, the 9th Circuit reversed, saying it had never held that an accommodation that fails to guarantee a return-to-work-date is per se unreasonable. Instead, "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," it said, quoting its own precedent. "We have never recognized a per se rule that extended leave could never constitute a reasonable accommodation. In fact, we have consistently held that 'whether a proposed accommodation . . . is reasonable . . . requires a fact-specific, individualized inquiry.'"

Dive Insight:

While the Family and Medical Leave Act (FMLA) requires employers provide workers only 12 weeks of job-protected leave, the ADA has no specific limit. And, notably, leave beyond what the FMLA offers can be a reasonable accommodation, according to the U.S. Equal Employment Opportunity Commission (EEOC).

If an employee needs additional leave as a reasonable accommodation, employers are required to modify policies that limit the amount of leave employees can take, EEOC has said in guidance. Employers must consider unpaid leave as a reasonable accommodation for workers with disabilities, assuming the accommodation does not pose an undue hardship to the employer. This is true even if the worker has exhausted his or her leave, including workers' comp leave, FMLA or comparable leave under local or state law, the EEOC has said. The agency has makes clear, however, that indefinitely leave "will constitute an undue hardship, and so does not have to be provided as a reasonable accommodation."

Generally, employment experts say that an employee need only provide an expected end date for the leave. But because complications arise and healing may take longer than expected, that doesn't immediately render an extension request indefinite, according to EEOC. Even multiple extension requests may be reasonable if an employee provides include a projected return date and explains why additional leave will allow them to return.

In fact, Jeff Nowak, now a shareholder at Littler, told attendees at a 2018 conference that HR professionals should still engage with requests for indefinite leave. At least as some questions, he suggested, and "make sure that you can establish that you’ve looked at all other accommodations before you terminate employment."