Uncertain or Indefinite Leave Automatically Unreasonable? Maybe Not.

Historically, courts have generally agreed that an uncertain or indefinite leave of absence is not a reasonable accommodation under the Americans with Disabilities Act (ADA).

Additionally, the Equal Employment Opportunity Commission has advised that “indefinite leave — meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship, and so does not have to be provided as a reasonable accommodation.”

Recently, however, the Ninth Circuit held that a request for medical leave without a specific return date may sometimes be a reasonable accommodation under the ADA. Kachur v. NAV-LVH, LLC dba Westgate Las Vegas Resort & Casino, (9th Cir., 2020).

Ken Kachur, a security guard at Westgate Las Vegas Resort & Casino, was terminated after requesting an additional month of leave as he recovered from knee surgery. His doctor testified that he was not sure how long the recovery process would take. Kachur had taken a total of 16 weeks of leave, including 12 weeks of Family and Medical Leave Act (FMLA) leave. He provided his employer with monthly updates of his recovery after exhausting his FMLA leave.

The Court held that an accommodation for extended leave that fails to provide a specific return date has never been recognized as “per se unreasonable.” In other words, whether an accommodation is reasonable requires a fact-specific analysis, including whether the accommodation poses an undue hardship on the employer.

Employers should be cautious when an employee requests uncertain or indefinite leave. It is important that employers engage in the interactive process with the employee and conduct a fact-specific analysis to determine if a proposed accommodation is reasonable.

Contact Employers Council for assistance with questions regarding accommodations under the ADA.