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25th Annual HR Law & Solutions Seminar

The ADA – 25 Years Later

Friday, March 10, 2017

Sanibel Harbour Resort & Spa

17260 Harbour Point Drive

Fort Myers, Florida 33908

Presented by:

John F. Potanovic, Esquire

john.potanovic@henlaw.com

John F. Potanovic concentrates his practice in Employment Law and was among the first attorneys to achieve Board Certification in Labor and Employment Law in the State of Florida. He defends employers in discrimination, retaliation, whistleblowing and harassment lawsuits, including cases brought under Title VII, the ADA, the FLSA, and civil rights statutes, handling such matters through both jury and non-jury trials. John also handles wage and hour matters under the Fair Labor Standards Act, EEOC investigations and all aspects of employment counseling, including the review and drafting of employment policy handbooks. He is admitted to practice in all Florida state courts, as well as the United States District Court for the Middle and Northern Districts of Florida.

John serves on the Henderson Franklin’s Executive Committee and is Chair of the Employment Law practice group. He shares his expertise writing and speaking to many business and professional groups with regard to employment matters, and takes the lead in organizing the firm’s annual HR Law & Solutions educational seminar for human resource professionals.

For eight consecutive years (2009-2016), John was named by Florida Super Lawyers® magazine as one of the top attorneys in Florida, which recognizes the state’s top five percent of attorneys who are selected through an extensive peer review, statewide survey and independent evaluation. He is also AV-rated by Martindale Hubbell.

John joined Henderson Franklin in 1988. He has two daughters, Brittany and Jessica.

PROFESSIONAL AND CIVIC AFFILIATIONS

John is a member of the Society of Human Resource Management (SHRM) and Association of Workplace Investigators. He serves on the Fort Myers YMCA Advisory Board of Directors and is a member of the Rotary Club Fort Myers South.

John is a past member of the board of directors of the Greater Fort Myers Chamber of Commerce, past president of the University of Florida Alumni Association (Southwest Florida Chapter), former legislative committee chairman of the Human Resource Management Association of Southwest Florida and was a barrister in the Calusa Chapter of the American Inn of Courts. He also served as a member of the 2015 Heart Ball Executive Leadership Team.

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Practice Areas Employment Law, Practice Area Chair Business LitigationOffice Fort MyersDirect Dial 239.344.1240Fax 239.344.1590E-mail john.potanovic@henlaw.com

Undergraduate Degree University of South Florida, 1982Law Degree University of Florida, J.D., with honors, 1988Admitted to The Florida Bar 1988

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i

AMERICANS WITH DISABILITIES ACT (ADA) UPDATE

By: John F. Potanovic, Esquire

Table of Contents

Update on the Definition of “Disability” ..................................................................1

Short-Term Conditions ..........................................................................................1

Episodic Disorders ......................................................................................3

Employer’s Lack of Knowledge of Impairment as ADA Defense ...........................3

Developments on Whether an Individual is “Qualified” ..........................................4

Attendance/Punctual Performance as an Essential Function .....................5

Punctuality ..................................................................................................7

Update on “Reasonable Accommodation” Issues .................................................9

Employee’s Duty to Ask for an Accommodation/ Employer Knowledge

of the Disability ...................................................................................... 10

Employer’s Duty to Engage in Interactive Process When

Accommodation is Requested ............................................................... 11

Unpaid Leave as a Reasonable Accommodation ..................................... 12

Leave for a Definite vs. Indefinite Time .................................................... 14

Page 1 of 15

I. Update on the Definition of “Disability”

Introduction and Background

One of the first questions that arise in connection with

many ADA cases is whether the individual has a

“disability.” A disability is a “physical or mental impairment

that substantially limits one or more of the major life

activities of such individual.” 42 U.S.C. 12102(2)(A). It also

includes having a “record of” such an impairment, or being

“regarded as” having such an impairment. 42 U.S.C.

12102(2)(B),(C). This definition raises a number of difficult

issues, most of which continue to be litigated. These

issues include (among others) whether a “major life

activity” is affected, whether medication is taken into account in determining if the

impairment substantially limits a major life activity, whether an impairment is considered

merely “short-term.”

The ADA Amendments Act (the “ADAAA”) expanded the definition of “disability” for

cases arising as of January 1, 2009. However, courts continue to require that the

individual still demonstrate that s/he has a covered disability. For example, in Neely v.

PSEG Texas, Ltd., 735 F.3d 242 (5th Cir. 2013), the court held that despite the plaintiff’s

argument, the ADAAA “in no way eliminated the term” disability “from the ADA or the

need to prove a disability on a claim of disability discrimination.” Specifically, although

“the ADAAA makes it easier to prove a disability, it does not absolve a party from

proving one.” Similarly, in Felkins v. City of Lakewood, 2014 U.S. App. LEXIS 23981

(10th Cir. 2014), the court noted that although the standard for showing disability is lower

than it used to be, an individual still must show that s/he has an impairment substantially

limiting a major life activity. In this case, the court held that the plaintiff did not present

adequate evidence that her “avascular necrosis” substantially limited any of her

articulated major life activities (walking, standing, lifting, normal cell growth or circulatory

functions).

Short-Term Conditions

In the now irrelevant Supreme Court case, Toyota Motor Manufacturing, Kentucky, Inc.

v. Williams, 534 U.S. 184, 122 S. Ct. 681 (2002), the court held that an impairment’s

impact must be “permanent or long-term.” Generally, pre-ADAAA, conditions lasting up

to several months without residual effects were considered short-term. For example, in

Velarde v. Associated Regional and University Pathologists, 2003 U.S. App. LEXIS

Page 2 of 15

6432 (10th Cir. 2003) (unpublished), the court held that a lifting impairment which lasted

less than two months was not “long-term.” In Carroll v. Xerox Corp., 2002 U.S. App.

LEXIS 12852 (1st Cir. 2002), the court held that an inability to work for three months was

not of sufficient duration to constitute a disability.

Pre-ADAAA, the position of EEOC and other courts was that if an impairment lasts “at

least several months,” it is not short-term. See EEOC Compliance Manual § 902.4(d) at

p. 30. In Sinclair Williams v. Stark, 2001 U.S. App. LEXIS 5367 (6th Cir. 2001)

(unpublished), the court found that hypertension, which causes someone to miss nearly

three months of work, could be considered “substantially” limiting. Similarly, in Katz v.

City Metal Co., 87 F.3d 26 (1st Cir. 1996), the court cited the EEOC’s guidance that a

condition “expected to be at least several months” could constitute a disability.

The ADAAA does not specify the length of time a

condition must last to be substantially limiting. In its

ADAAA regulations, the EEOC stated that the “effects of

an impairment lasting or expected to last fewer than six

months can be substantially limiting.” EEOC’s Final

ADAAA Regulations at 29 C.F.R. 1630.2(j)(1)(ix). In fact,

in Summers v. Altarum Institute, 740 F.3d 325 (4th Cir.

2014), the court held that after the ADAAA, temporary

conditions “lasting or expected to last fewer than six months” can be substantially

limiting. The court based this on the fact that the ADAAA expressly excludes from the

“regarded as” provision conditions with an expected duration of six months or less, but

does not exclude these conditions from the “actual” disability category. The court stated

that a “negative inference may be drawn from the exclusion of language from one

statutory provision that is included” in another provision in the same law. In this case,

the court held that the plaintiff’s condition, with an expected duration of seven months,

could easily qualify as a disability.

In Hosea v. Donley, 2014 U.S. App. LEXIS 16036 (9th Cir. 2014) (unpublished), a post-

ADAAA case, the court found that the plaintiff did not have a disability because he had

“acute work related stress” for just over two months with no “long-term or permanent

impairment.” The court agreed with the lower court’s holding that a “[t]emporary

psychological impairment without evidence of residual effects is not a disability in this

context.”

Page 3 of 15

Episodic Disorders

Episodic disorders can certainly be covered by the ADA. The

ADAAA specifically notes that an “impairment that is episodic or in

remission is a disability if it would substantially limit a major life

activity when active.” ADAAA, S.3406 Sect. 4(2) (2008).

This is very different from the pre-ADAAA standard, which

generally looked at whether the underlying condition was long-term

and how often the episodes recurred. For example, before the

ADAAA, in Brown v. Verizon Directories Sales Corp., 2005 U.S.

App. LEXIS 21779 (9th Cir. 2005) (unpublished), the court held that

an individual with an episodic disorder must establish that the episodes “have been

caused by or are related to a long-term underlying condition.” In Boykin v. Honda

Manufacturing of Alabama, 2008 U.S. App. LEXIS 16174 (11th Cir. 2008) (unpublished),

the court held that the plaintiff was not substantially limited in breathing where “his

breathing problems are short -- approximately one to three minutes in duration -- and

infrequent -- no more often than approximately once a month.”

Post-ADAAA, it is possible that an episodic disorder will be covered under the law even

if the symptoms recur very rarely. In Gogos v. AMS Mechanical Systems, Inc., 737 F.3d

1170 (7th Cir. 2013), the court held that the employee’s “blood-pressure spikes” and

episodic vision loss could be disabilities, even if brief and infrequent, because, when

active, these episodic disorders substantially limited circulatory functions and eyesight.

Likewise, in Britting v. Department of Veterans Affairs, 2011 U.S. App. LEXIS 2096 (3d

Cir. 2011) (unpublished), the court suggested that although the plaintiff’s irritable bowel

syndrome was not a disability (under the pre-amended ADA) because it did not manifest

itself often enough, it would be a disability under the ADAAA because it was an episodic

condition that was substantially limiting when active.

Employer’s Lack of Knowledge of Impairment as ADA

Defense

Lack of knowledge of the disability can be a successful defense in a wide variety of ADA

cases, including (but not limited to) “regarded as” cases. For example, in Spurling v.

C&M Fine Pack, Inc., 739 F.3d 1055 (7th Cir. 2014), the court reiterated “the well-

established principle that an employee cannot hold an employer liable under the ADA if

the employer has no knowledge of the employee’s disability.” In this case, however, the

court held that the employer did, in fact, have knowledge. In Jackson v. City of Hot

Page 4 of 15

Springs, 751 F.3d 855 (8th Cir. 2014), the court held that the plaintiff could not show that

the employer failed to rehire him because of his disability where he offered no evidence

to show that the employer knew about his hidden conditions.

Likewise, in Howard v. Steris Corp. 2013 U.S. App.

LEXIS 25083 (11th Cir. 2013) (unpublished), the court

held that where the employer did not have knowledge

of the employee’s sleep disorder (and the employee

had not even received a diagnosis prior to termination),

the employer could not have discriminated against him

because of a disability. In Echols v. Kalamazoo Public

Schools, 2012 U.S. App. LEXIS 25509 (6th Cir. 2012)

(unpublished), the court held that the employer could

not have regarded the unsuccessful applicant as

having a disability where there was no evidence that

the decision maker had any knowledge of her impairment (a head injury). In Laws v.

HealthSouth Northern Kentucky Rehabilitation Hospital, 2012 U.S. App. LEXIS 25515

(6th Cir. 2012) (unpublished), the court held that the employer could not have

discriminated against the employee because of her disability where there was no

evidence that the decision maker knew about the vision disability. Likewise, in Adeleke

v. Dallas Area Rapid Transit, 2012 U.S. App. LEXIS 18130 (5th Cir. 2012) (unpublished),

the court held that where none of the decision makers knew about the individual’s

mental illness (or regarded him as disabled), the employee could not prove disability

discrimination. In Dulaney v. Miami-Dade County, 2012 U.S. App. LEXIS 11396 (11th

Cir. 2012) (unpublished), the court strongly suggested that where the decision maker

did not even know about the individual’s alleged drug addiction, it could not have

discriminated because of the impairment.

II. Developments on Whether an Individual is “Qualified”

Introduction and Background

The ADA only protects an individual who has a disability and who is “qualified.”

Therefore, it is important to determine -- up front -- whether the applicant or employee is

qualified under the ADA standards. In fact, in a number of cases, courts have thrown

out the complaints because the individual was not found to be qualified.

As an initial matter, it is important to remember that, to be qualified under the ADA, an

individual must: (1) have the requisite skills, experience, education, licenses, etc. and

Page 5 of 15

(2) be able to perform the essential functions of the job, either with or without

reasonable accommodation. 42 U.S.C. 12111(8); 29 C.F.R. § 1630.2(m).

Attendance/Punctual Performance as an Essential

Function

Whether “attendance” is itself a function has been

subject to debate. Many disability-rights advocates have

argued that attendance itself is not the job function;

rather, what the individual does on the job is the function.

Along these lines, the EEOC has taken the position that

“attendance” is not an essential function of a job. EEOC

Enforcement Guidance on Reasonable Accommodation

and Undue Hardship, No. 915.002 (3/1/99) at p. 33. In

Petitioner v. Johnson (Homeland Security), 2014 EEOPUB LEXIS 1810 (EEOC 2014),

the EEOC explained that although performing a job “sometimes requires a person’s

presence at the worksite,” this “does not render” attendance “a job function in and of

itself.” The EEOC further stated that considering attendance to be an essential function

would lead “to the perverse and unacceptable conclusion that any employee with

disability-related absences is an unqualified individual.”

The vast majority of courts that have considered the issue have concluded that

attendance is essential for most jobs. For example, in Taylor-Novotny v. Health Alliance

Med. Plans, Inc., 772 F.3d 478 (7th Cir. 2014), the court held that “regular attendance”

was essential for a Contract Specialist, responsible for “document preparation,

negotiating and reviewing contract terms with medical providers, planning proactively for

contract renewals, and documenting activities related to medical provider contracts in a

contracting management system.” As a result, the employer “need not accommodate

erratic or unreliable attendance” caused by her MS. Although the employee tried to

argue that attendance was not essential because the employer allowed some

employees to work at home, the court noted that even employees working at home

were required “to adhere to an agreed-upon work schedule,” to be accessible during

that schedule, and to attend meetings “as needed by the organization.”

Similarly, in White v. Kansas City Area Transportation Authority, 2014 U.S. App. LEXIS

5602 (8th Cir. 2014) (unpublished), the court held that “regular and dependable

attendance was a requirement of her position” and the employee was not qualified

where she was “excessively absent from work.” In Basden v. Professional

Transportation, Inc., 714 F. 3d 1034 (7th Cir. 2013), the court noted that “regular

attendance” is generally “an essential job requirement,” and an employer “need not

Page 6 of 15

accommodate erratic or unreliable attendance.” The court held that the plaintiff, an

employee with MS, could not show she was qualified where she had no prescribed

treatment and “no anticipated date by which she could have been expected to attend

work regularly.

In Samper v. Providence St. Vincent Medical

Center, 675 F.3d 1233 (9th Cir. 2012), the court held

that reliable attendance for a neo-natal intensive

care nurse was essential. The court noted that most

circuits have “endorsed the proposition that in those

jobs where performance requires attendance at the

job, irregular attendance compromises essential job

functions.” The court stated that attendance might

be necessary at a particular job for a variety of reasons including work as part of a

team, the need for face-to-face interaction with clients and other employees, or the need

to work with certain on-site equipment. The court concluded that “the common-sense

notion that on-site regular attendance is an essential job function could hardly be more

illustrative than in the context of a neo-natal nurse,” because of the need for teamwork,

interaction with patients (lifting babies, pushing cribs, etc.), the need to work with

medical equipment, and the need to respond to alarms.

Likewise, in Valdez v. Brent McGill and Mueller Supply Co., Inc., 2012 U.S. App. LEXIS

2783 (10th Cir. 2012) (unpublished), the court noted that “physical attendance in the

workplace is itself an essential function” of most jobs (citation omitted). In this case, the

court held that the plaintiff’s job as a warehouse manager required physical attendance

because of the need to perform inventory counts, interact with customers, and

supervise staff. In Melange v. City of Center Line, 2012 U.S. App. LEXIS 11175 (6th Cir.

2012) (unpublished), the court noted that “this court has flatly held that an employee

who cannot meet the attendance requirements of the job at issue cannot be considered

a ‘qualified’ individual protected by the ADA.” The court also stated the employee’s job

“as a custodian, which involves manual labor, requires his attendance.

Similarly, in Robert v. Board of County Commissioners of Brown County, 691 F.3d 1211

(10th Cir. 2012), the court held that it was essential for a supervisor of adult offenders to

actually perform the job on site, and to conduct in-person visits to the offenders’ homes

and workplaces. In Anderson v. JP Morgan Chase & Co., 2011 U.S. App. LEXIS 5885

(11th Cir. 2011) (unpublished), the court held that being “physically present” was an

essential function of the plaintiff’s job as a first responder in the call center; since the

employee had a large number of absences (because of her alleged allergy to carpet

cleaner), she was not qualified for her job.

Page 7 of 15

On the other hand, in Carmona v. Southwest

Airlines Co., 2010 U.S. App. LEXIS 8408 (5th Cir.

2010), the court held that regular attendance

might not have been essential for a flight

attendant where it had approved his extensive

intermittent FMLA leave and its attendance policy

was extremely lenient. The court stated that the

employer’s decision to grant the employee

intermittent FMLA leave indefinitely “despite the

fact that he was frequently unable to give Southwest notice of his absences in advance,

and without transferring him to a different position in the company, suggests that

attendance was not in fact an essential requirement of his job.”

Perhaps the more thoughtful analysis would involve analyzing not whether “attendance”

is essential, but whether “physical presence” at a particular worksite is essential. In

Abram v. Fulton County Government, 2015 U.S. App. LEXIS 1380 (11th Cir. 2015), the

court held that physical presence at the front desk was essential for an administrative

coordinator/front desk receptionist. In EEOC v. Ford Motor Co., 2014 U.S. App. LEXIS

7502 (6th Cir. 2014), the court held that attendance at the employer’s facility might not

be an essential function of a resale steel buyer’s job since the duties might be able to be

performed at home. In this case, the duties included responding to steel supply issues,

updating spreadsheets, and occasional on-site visits. The court stated that, “[F]or many

positions, regular attendance at the work place is undoubtedly essential,” but “as

technology has advanced,” attendance at the workplace “can no longer be assumed to

mean attendance at the employer’s physical location.” Rather “the ‘workplace’ is

anywhere that an employee can perform her job duties.” The court noted that “the vital

question” is “not whether ‘attendance’ was an essential job function for a resale buyer,

but whether physical presence at the Ford facilities was truly essential.”

Punctuality

A related question is whether “punctuality” can be an essential function of jobs. The

EEOC has taken the position that “punctual attendance” is not an essential function

because “only job duties – that is, specific tasks to be performed – can be essential

functions.” EEOC Brief in Conneen v. MBNA America Bank, N.A., No. 02-1504 (Brief

filed in Third Circuit, 5/13/02). Therefore, the EEOC argued that “arriving at work at 8:00

a.m.” was not an essential function of a marketing manager’s job. The EEOC reasoned

that otherwise, an employer would not have to consider schedule modifications as

reasonable accommodations.

Page 8 of 15

On the other hand, some courts have

implicitly or explicitly held that punctuality can

be essential. For example, in Murphy v.

Samson Resources Co., 2013 U.S. App.

LEXIS 9328 (10th Cir. 2013) (unpublished),

the court held that the employer was not

required to give the employee a modified

schedule, allowing her to make up time

missed due to her migraines, because her

job required punctual, timely performance of

certain duties (preparing vouchers, recording invoices, processing payments, etc.)

under close supervision. In Olsen v. Capital Region Medical Center, 713 F.3d 1149 (8th

Cir. 2013), the court held that a mammography technician who frequently had

incapacitating seizures was not qualified because her job required tending to immediate

patient care and operating sophisticated medical equipment. In Farina v. Branford

Board of Education, 2011 U.S. App. LEXIS 23169 (2d Cir. 2011) (unpublished), the

court suggested that punctuality was essential for a school teacher when it held that it

would be “patently unreasonable” to require a school to “have someone on call”

whenever the teacher could not arrive on time for work.

In addition, in Earl v. Mervyns, Inc., 207 F.3d 1361 (11th Cir. 2000), the court held that

punctuality was an essential function of the plaintiff’s job as a store area coordinator.

Specifically, the court noted that when the plaintiff was scheduled for the morning shift,

she “was responsible for preparing her department for business that day,” including

obtaining cash for the registers, stocking merchandise, and arranging displays. When

she was scheduled for a later shift, she relieved an area coordinator who was already

on duty. Therefore, if the plaintiff arrived late in the morning, “her area would not be

ready for the usual influx of morning customers;” if she arrived late in the afternoon, the

coordinator on duty “would be forced to work a longer shift.”

However, some courts have held that a regular, predictable schedule might not be an

essential function of certain jobs. In Ward v. Massachusetts Health Research Institute,

209 F.3d 29 (1st Cir. 2000), the plaintiff was a data entry assistant/lab assistant, working

under a flex-time schedule which required him to work 7-1/2 hours, starting anytime

between 7:00 and 9:00 a.m. The plaintiff frequently showed up later because of his

arthritis which allegedly caused severe pain and stiffness in the morning. After the

plaintiff was fired for excessive tardiness, he claimed that he would be qualified if he

had an open-ended schedule. The court concluded that although a “regular and reliable

schedule may be an essential element of most jobs,” it might not be an essential

Page 9 of 15

function of this job, because there was no “evidence that the nature of Ward’s position

requires that he be present during specific hours of the day.” Rather, the evidence

showed that he simply had to complete his work before the lab opened the following

day. The court also noted that there was no evidence that the plaintiff’s schedule

interfered with other employee’s ability to perform their jobs.

Where regular attendance is considered an

essential function, courts have said that someone

is not qualified for a job if his/her attendance is

unreliable or unpredictable. For example, in

Perkins v. Ameritech Corp., 2006 U.S. App.

LEXIS 81 (7th Cir. 2006) (unpublished), the court

held that the plaintiff, who was absent from work

for a period of several months, was not “qualified”

under the ADA. In Deal v. Candid Color Systems,

1998 U.S. App. LEXIS 15018 (10th Cir. 1998) (unpublished), the court found that the

employee was not qualified because she “was able to work so infrequently and

sporadically” that a “second employee would be required to perform Deal’s duties on all

but those rare occasions when Deal could come to work.” The court held that the

employer was not required to permit her to “work whenever she was able, with little or

no notice of her absences.”

III. Update on “Reasonable Accommodation” Issues

Introduction and Background

The duty to provide reasonable accommodations to qualified individuals with disabilities

is considered one of the most important statutory requirements of the ADA. This

requirement has resulted in a great deal of ADA litigation.

By way of a brief background, there are three general categories of reasonable

accommodation:

Changes to the job application process so that a qualified applicant with a

disability can be considered for the job;

Modifications to the work environment -- including how a job is performed -- so

that a qualified individual with a disability can perform the job; and

Changes so that an employee with a disability can enjoy equal benefits and

privileges of employment

Page 10 of 15

The ADA, the EEOC’s regulations, and court decisions identify many types of

reasonable accommodations that an employer may have to provide, such as:

Job restructuring;

Part-time or modified work schedules;

Reassignment to a vacant position;

Acquiring or modifying equipment;

Changing exams, training materials, or policies; and

Providing qualified readers or interpreters.

42 U.S.C. 12111(9); 29 C.F.R. § 1630.2(o)(2).

Employee’s Duty to Ask for an Accommodation/

Employer Knowledge of the Disability

A good deal of existing authority supports the

notion that generally, an individual must request an

accommodation. The EEOC has stated that, in

general, “it is the responsibility of the individual

with a disability to inform the employer that an

accommodation is needed.” Appendix to 29 C.F.R.

§ 1630.9; EEOC Enforcement Guidance on

Reasonable Accommodation and Undue Hardship,

No. 915.002 (10/17/02).

Likewise, in Chancey v. Fairfield Southern Co., 2014 U.S. App. LEXIS 17289 (11th Cir.

2014) (unpublished), the court held that the employee, a train operator helper, was not

entitled to a reasonable accommodation where he never requested an accommodation

for his tremors, insomnia, and anxiety and concentration problems (among other

issues).

Likewise, in Jones v. Nationwide Life Insurance Co., 696 F.3d 78 (1st Cir. 2012), the

court stated that an individual “must explicitly request an accommodation, unless the

employer otherwise knew one was needed.” In Kobus v. The College of Scholastica,

Inc., 2010 U.S. App. LEXIS 12601 (8th Cir. 2010), the court held that to be entitled to a

reasonable accommodation, the employee must “inform the employer that an

accommodation is needed.” In this case, the court stated that there was no evidence

that the employee’s limitations “were apparent at work,” he had “repeatedly declined to

reveal his diagnosis to his employer,” and he had “expressed doubt about his ability to

confirm his diagnosis with a doctor.”

Page 11 of 15

Key Take-Away: Employers should be aware that some courts have suggested that if

the employer knows both about the disability and the need for accommodation, it may

have an obligation to provide the accommodation -- even without an express request

that a modification is needed because of a disability.

In Brady v. Wal-Mart Stores, Inc., 531 F.3d 127 (2d Cir. 2008), the court held that “an

employer has a duty to accommodate an employee’s disability if the disability is

obvious--which is to say, if the employer knew or reasonably should have known that

the employee was disabled,” even without an express request.

Employer’s Duty to Engage in Interactive Process When

Accommodation is Requested

Once an accommodation has been requested,

the employer should initiate an interactive

process with the individual. In Barnett v. U.S.

Air, Inc., 228 F.3d 1105 (9th Cir. 2000), the court

noted that the interactive process requires

employers to “analyze job functions to establish

the essential and nonessential job tasks,” to

“identify the barriers to job performance” by

consulting with the employee to learn “the

precise limitations” and to learn “the types of accommodations which would be most

effective.” In Enica v. Principi, 544 F.3d 328 (1st Cir. 2008), the court stated that the

interactive process is “a meaningful dialogue with the employee to find the best means

of accommodating that disability.”

Likewise, in Parker v. Verizon Pennsylvania, Inc., 2009 U.S. App. LEXIS 2508 (3d Cir.

2009), the court noted that employers can show a good faith attempt to accommodate

by meeting with the employee, requesting information about the limitations, considering

the employee’s requests, and discussing alternatives if a request is burdensome.

Courts have generally held that an employer’s failure to initiate the interactive process is

not itself a “per se” violation of the ADA. For example, in Spurling v. C&M Fine Pack,

Inc., 739 F.3d 1055 (7th Cir. 2014), the court noted that although “the ADA requires an

employer to “engage with the employee in an ‘interactive process,’” there is no

independent liability for failure to engage in the process. In Bunn v. Khoury Enterprises,

Inc., 753 F.3d 676 (7th Cir. 2014), the court held that “there is no separate cause of

action for a failure” to engage in the interactive process because the ADA is “primarily

concerned with the ends, not the means.”

Page 12 of 15

Yet, more and more Courts have expressly stated or suggested that the interactive

process may be a requirement. For example, in EEOC v. LHC Group, Inc., 2014 U.S.

App. LEXIS 23295 (5th Cir. 2014), the court held that “once the employee presents a

request for an accommodation, the employer is required to engage in an interactive

process,” which the court described as a “statutory duty to at least discuss

accommodation.” In Snapp v. United Transportation Union, 2013 U.S. App. LEXIS

22457 (9th Cir. 2013) (unpublished), the court stated that if an employee has given

notice of a disability and need for accommodation, “there is a mandatory obligation to

engage in an informal interactive process ‘to clarify what the individual needs and

identify the appropriate accommodation.’” The court noted that “failure to do so would

constitute discrimination under the ADA.” In EEOC v. Chevron, 570 F.3d 606 (5th Cir.

2009), the court stated that once an employee makes a reasonable accommodation

request, “the employer is obligated by law to engage in an ‘interactive process’: “a

meaningful dialogue with the employee to find the best means of accommodating that

disability. The court noted that “[w]hen an employer does not engage in a good faith

interactive process, that employer violates the ADA.”

Unpaid Leave as a Reasonable Accommodation

Courts have held that unpaid leave is a form of

reasonable accommodation. Unpaid leave may be an

appropriate reasonable accommodation when an

individual expects to return to work after getting

treatment for a disability, recovering from an illness, or

taking some other action in connection with his/her

disability, such as training a guide dog. The EEOC has

consistently taken the position that leave can be a

reasonable accommodation. Appendix to 29 C.F.R. §

1630.2(o); EEOC Enforcement Guidance on Reasonable

Accommodation and Undue Hardship, (10/17/02).

In addition, a number of courts have held that leave is a form of reasonable

accommodation in particular circumstances. For example, in Murphy v. Samson

Resources Co., 2013 U.S. App. LEXIS 9328 (10th Cir. 2013) (unpublished), the court

noted that a leave of absence may be a required accommodation. In Valdez v. Brent

McGill and Mueller Supply Co., Inc., 2012 U.S. App. LEXIS 2783 (10th Cir. 2012)

(unpublished), the court also held that a “leave of absence may be a reasonable

accommodation as long as the employee’s request states the expected duration of the

impairment.” Similarly, in Robert v. Board of County Commissioners of Brown County,

691 F.3d 1211 (10th Cir. 2012), the court noted that a leave of absence can be a

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reasonable accommodation. In Carroll v. City of Stone Mountain, 2013 U.S. App. LEXIS

23633 (11th Cir. 2013) (unpublished), the court agreed that “a leave of absence can be a

reasonable accommodation.”

Another question that arises is how much leave an

individual must be given as a reasonable

accommodation. This is likely to be fact-specific --

depending on whether a particular amount of time

imposes an undue hardship on the employer and on

whether the individual is still considered “qualified.” For

example, in Sanchez v. Vilsack, 695 F.3d 1174 (10th

Cir. 2012), the court reiterated its position that a leave

of absence for medical care would be a reasonable

accommodation, specifically noting other decisions

which have held that several months of leave were required under the facts of those

cases. In Cleveland v. Federal Express Corp., 2003 U.S. App. LEXIS 24786 (6th Cir.

2003) (unpublished), the court held that there is no “bright-line rule defining a maximum

duration of leave that can constitute a reasonable accommodation” and, therefore, the

plaintiff’s requested six-month leave could be a reasonable accommodation for her

lupus.

The EEOC has stated that if holding a position open for the needed leave period would

pose an undue hardship:

“the employer must consider whether it has a vacant, equivalent position

for which the employee is qualified and to which the employee can be

reassigned to continue his/her leave for a specific period of time and then,

at the conclusion of the leave, can be returned to this new position.”

EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship,

10/17/02.

Importantly, the EEOC has stated that an individual cannot be penalized for work

missed during leave which was taken as a reasonable accommodation. For example, in

Complainant v. Donahoe, 2014 EEOPUB LEXIS 1968 (EEOC 2014), the EEOC stated

that an “employer may not penalize an employee who missed work during leave taken

as a reasonable accommodation. To do so would constitute retaliation for the

employee’s use of a reasonable accommodation.

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Leave for a Definite vs. Indefinite Time

Another question regarding unpaid leave is whether an

employer has to hold the job open for an indefinite period

of time. This situation arises when an employee says s/he

simply doesn’t have any idea when s/he can come back.

The situation also arises if an employee continually

requests more and more leave after the expiration of prior

leave; this pattern arguably reflects a request for indefinite

leave.

The EEOC has stated that employers “have no obligation to provide leave of indefinite

duration,” because “granting indefinite leave, like frequent and unpredictable requests

for leave, can impose an undue hardship on an employer’s operations.” EEOC Fact

Sheet “Applying Performance and Conduct Standards to Employees with

Disabilities” (2008).

Most courts have held that an employer does not have to provide indefinite leave as a

reasonable accommodation. For example, in Petrone v. Hampton Bays Union Free

School District, 2014 U.S. App. LEXIS 9775 (2d Cir. 2014) (unpublished), the court held

that the school teacher’s requested leave of absence was not reasonable where he had

no anticipated date of return to his job. Likewise, in Silva v. Hidalgo Police Department,

2014 U.S. App. LEXIS 13658 (5th Cir. 2014) (unpublished), the court held that the police

department was not required to give “indefinite” leave because the police officer had

used all of her FMLA leave and could not “provide an estimate of when she could

resume her former job duties except to say that it would be longer than one month in the

most optimistic scenario.” In Judge v. Landscape Forms, Inc., 2014 U.S. App. LEXIS

22372 (6th Cir. 2014) (unpublished), the court held that the employee had not sufficiently

requested leave as a reasonable accommodation where he did not give any indication

of when he would be able to return to work after his extensive shoulder surgery.

In Murphy v. Samson Resources Co., 2013 U.S. App. LEXIS 9328 (10th Cir. 2013)

(unpublished), the court held that the employee “must provide an expected duration” for

the leave s/he needs; otherwise, the employer “cannot determine whether an employee

will be able to perform the essential functions of the job in the near future and therefore

whether the leave request is a ‘reasonable’ accommodation.” In this case, the court

determined that the employee, who suffered from sporadic migraines, did not present

evidence concerning when she would be able to return to work. In Roddy v. City of Villa

Rica, 2013 U.S. App. LEXIS 20324 (11th Cir. 2013) (unpublished), the court held that

the employee was not entitled to leave as an accommodation where the employee

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could not show that he would be able to return to work “in the immediate future.” In this

case, the court noted that the employee only indicated that there was a “possibility” of

returning to work and the doctor’s note indicating a specific return date was “purely a

guess.”

Courts seem to analyze repeated extensions

of leave requests as indefinite leave. For

example, in Brannon v. Luco Mop Co., 521

F.3d 843 (8th Cir. 2008), the court held that an

employee’s third request for additional leave

was not a request for “reasonable

accommodation that would permit her to

perform the essential function of regular work

attendance,” where each request “further

postponed her return-to-work date.” The court noted that although leave is a possible

accommodation, an employer is not required to provide “an unlimited absence policy.”

Similarly, in Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001),

the court noted that an employee cannot “repeatedly invoke” leave as an

accommodation “where there are plausible reasons to believe” that leave would not be

effective, such as “the fact that a prior leave was granted and was unsuccessful.”