Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Jimmie E. Johnson | The Daily Recorder | Apr 12, 2016

Employers must provide a qualified individual with a disability (that is, an employee who can perform the “essential” functions of her job, with or without accommodation) with “reasonable” accommodations. When an employee requests extended time off, flexible scheduling, telecommuting, and related accommodations, determining whether the request is reasonable can be complicated.

Accommodations under the federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) are only “reasonable” if they (1) are medically necessary; (2) are “effective” to allow the employee to performing the essential functions of her job; and (3) do not impose an “undue burden” on the employer. Of course, the first requirement is relatively easy to satisfy. “Dr. I’ll Say Anything” may write whatever note the patient requests. In the alternative, for a small fee, the employee can “buy” the perfect medical documentation on the internet.

The other two requirements are less straightforward, and they raise interesting issues when employees request time off and similar accommodations.

Extended/Indefinite Leave

As the United States District Court for the Central District of California reaffirmed last year in Dezham v. Macy’s West Stores, Inc. , employers do not have to provide “indefinite” leave (that is, time off without a reasonably definite return-to-work date) as an accommodation because such leave is not “effective.” The Equal Employment Opportunity Commission (“EEOC”), the agency responsible for enforcing federal workplace laws, takes the position that any “definite” leave (even a lengthy leave) may be a reasonable unless the employer can demonstrate that giving such extended time off would result in an “undue burden” on operations.

When is a lengthy leave an undue burden? The employer should consider these factors when evaluating undue burden: (1) the cost of the accommodation; (2) the employer’s financial resources; (3) the size of the workforce; (4) the availability of temporary workers; and (5) the impact of the leave on business operations. Notably, employers should not consider how the leave may negatively affect co-worker morale, or the fact that co-workers will have to cover for the employee during the leave.

Obviously, the determination of undue burden will depend on the circumstances. Employers cannot apply a “one size fits all” strategy in dealing with leave issues. A Fortune 500 company may be required to provide extended leave to a customer service agent in a call center if the employee’s absence could be easily covered by co-workers or temporary employees. On the other hand, a small start up would have more leeway to deny the lengthy leave request of its office manager, particularly if the manager is the only person with knowledge of the company’s accounting system.

Intermittent Leave/Telework

Some employees request sporadic time off during the month as an accommodation, or to work a reduced schedule every day and/or when symptoms flare. Others want to work at home, so they can avoid commuting, or having to “get ready” for work.

The good news, as recently confirmed by the Ninth Circuit Court of Appeals in Lawler v. Montblanc North America, LLC, is that employers need not create a new job as an accommodation for employees with disabilities. An employee must be able to perform the essential functions of a job that already exists (with the help of reasonable accommodations, if necessary). So, when is an accommodation merely a “modification” of an existing job, and when is an accommodation creating a “new job”?

The Ninth Circuit provided some helpful guidance in a 2001 decision, Humphrey v. Memorial Hospital. There, the court decided that the employer should have granted the employee’s request for telework because the employee could still perform the essential functions of her job as a medical transcriptionist at home. The court rejected the employer’s argument that allowing the employee to telework constituted creating a new job, particularly because other employees were permitted to work at home (so working at the hospital obviously was not an “essential” function).

Using a similar analysis, in Nealy v. City of Santa Monica, the California Court of Appeal found an accommodation request unreasonable . In that case, a solid waste equipment operator injured his knee and could not perform any heavy lifting. As an accommodation, the employee requested that (1) the employer assign him to an existing position that consisted of a two-person team, and (2) the other team member perform all the lifting duties required by their position. The court ruled that the employee’s requested accommodation was not reasonable because heavy lifting was an essential function of the job.

When is attendance at the employer’s regular place of business “essential” to the employee’s job duties? As explained by the Ninth Circuit in Samper v. Providence St. Vincent Medical Center, employers should consider three factors when making this determination: (1) does the job require teamwork with other employees; (2) does the job require in-person interaction with clients, co-workers, or others; and (3) does the job require use of items or equipment located at the employer’s place of business?

In Samper, the court determined that regular attendance by a nurse caring for babies in the neo-natal intensive care unit was an essential function of her job, so the hospital did not have to allow the nurse to take unscheduled intermittent leave. The court distinguished the situation in Humphrey, where the same court decided that regular attendance was not an essential function for a medical transcriptionist because she could do her job at home (and many of her co-workers did so).

Tips for Employers

When employees request time of, flexible scheduling, telecommuting or similar accommodations for their own medical conditions, the employer should determine if providing the accommodation will constitute an undue burden or amount to creating a new position. “One size fits all” strategies do not work in this area. Employers cannot lawfully institute leave “caps,” even if they are of relatively long duration (12 months, for instance.) Nor should employers impose “no telecommuting” or “no alternative scheduling” restrictions unless justified by the duties of the position at issue. Rather, employers should have a process in place to evaluate all accommodation requests on a case-by-case basis, and seek advice from competent employment law counsel when appropriate.