• Allowing an employee to take leave can be a form of reasonable accommodation.
• Leave provided under the ADA is job protected.
• Leave can be provided as an accommodation when no other accommodations are effective.

Allowing an employee to use accrued paid leave and providing additional unpaid leave can be a form of reasonable accommodation. Such leave could be in large blocks of time or on an intermittent or reduced schedule basis.

Similar to the Family and Medical Leave Act (FMLA), leave provided under the Americans with Disabilities Act (ADA) is job protected, but the ADA does not include an “equivalent” position provision; employers are expected to return employees to the jobs they had before leave began. The concept of leave as an accommodation might be confusing because it doesn’t align with the idea of providing an accommodation that keeps an employee on the job. The goal in allowing the use of leave, however, is to provide an employee the opportunity to manage the condition and ultimately remain in the workforce.

Leave could be provided as an accommodation when:

• No other accommodation is effective,
• The employee is not eligible for leave under the FMLA or has exhausted the FMLA leave, or
• The employee has exhausted paid time off and required additional leave.

If employers have a leave policy, they should ensure it is flexible. If, for example, they provide employees with up to three months of company leave for a medical condition, but a particular employee needs three months and two weeks of leave, they would need to consider allowing the additional two weeks as a reasonable accommodation. Generally, if the leave does not pose an undue hardship, employers might have a hard time arguing why they did not provide it. An inflexible leave policy can risk a very expensive claim, as such policies would apply to all employees, constituting a systemic issue.

How much leave is reasonable remains a matter of debate. At least one court, the 7th Circuit, has ruled that extended leave is not reasonable. Perhaps a few weeks or intermittent leave would be in that jurisdiction.

Otherwise, the amount of leave is limited only by how much leave would prove to be an undue hardship.

Unlimited leave, however, is not considered reasonable. If an employee is unable to provide at least an estimated return-to-work date, employers need not provide the leave as an accommodation.