Indefinite Leave As Reasonable Accommodation?
By Ruder Ware Alumni
May 19, 2014
Deciding what to do when an employee says she cannot return to work because of a medical condition, even after exhausting all FMLA leave, is one of the most difficult questions faced by an employer, especially in Wisconsin. I have written before about the need for a Wisconsin employer to consider the possibility of additional time off without pay as a reasonable accommodation for an employee suffering from a medical condition who has exhausted all FMLA leave available. I have always assumed, however, that an employer was not obligated to give indefinite leave to an employee because that would, almost per se, be considered an undue hardship for the employer. A recent decision from the highest state court in the State of New York has raised doubts about my conclusion.
In a recent decision, the highest court in New York determined that the employer had to show that the accommodation requested by a bank executive, that he be allowed indefinite leave because he did not intend to “abandon his position,” was an undue hardship for the bank. This means that there is no accommodation that may be automatically excluded from consideration even if the accommodation is a request for indefinite leave. While this is a New York State and City of New York decision based on their law, the past interpretations of the Wisconsin Fair Employment Act would certainly suggest a similar result could arise for a Wisconsin employer.
The New York court refused to dismiss the case and eliminated a “bright line” rule that we all thought was effective that being that an indefinite leave of absence would not be required. The court said the employer must show (1) that the employee could not with any reasonable accommodation, satisfy the essential functions of the job or (2) that the requested accommodation of indefinite leave would result in an undue hardship on the company. This standard is similar to the analysis that a Wisconsin lawyer must make.
The case has been sent back for further hearings so this is not a final answer to the questions of reasonable accommodation and indefinite leave of absence but it raises the specter that a Wisconsin employer will be required to analyze whether or not an indefinite leave is a reasonable accommodation that may be considered as part of the interactive process with the employee. A Wisconsin employer must determine whether an indefinite leave would create an undue hardship on the company. Remember, in Wisconsin, an employer may be obligated to transfer some of the essential functions of the job that the employee was performing at the time of the medical condition and request for leave.
This decision does not mean the end to a reasonable accommodation analysis but it does suggest that indefinite leave could become a consideration by an employer, especially if the company continues to function very well without the employee doing her job. One might also question whether the company needs that employee if that is happening.
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