Indefinite Leave and Remote Work? When Accommodations Are Not Reasonable

Quick Hits

• The U.S. Court of Appeals for the Fourth Circuit provided guidance in a recent unpublished opinion on leave and remote work as reasonable accommodations under the ADA and West Virginia Human Rights Act.
• Indefinite leave is not a reasonable accommodation as a matter of law.
• Remote work is not a reasonable accommodation for an employee who is receiving short-term disability insurance benefits, which typically are awarded only when an employee cannot work at all.

Background

The employer approved eight weeks of remote work for an account manager experiencing pregnancy complications, followed by twelve weeks of Family and Medical Leave Act (FMLA) parental bonding leave after she gave birth to twins. Due to severe childbirth-related complications, the employee required surgery that imposed significant physical restrictions, and she was approved for short-term disability (STD) benefits under her employer’s STD policy through her anticipated return date.

When the employee failed to return as expected, the employer contacted her. The employee stated she remained unable to work, that her STD benefits had been extended, and directed the employer not to contact her about a return date. The employer responded that her FMLA leave was exhausted, that STD benefits were separate from protected leave, and that her directive not to be contacted was unacceptable. The employee replied that she had another surgery scheduled for the following week with a four-to-six-week recovery period and possibly additional surgery thereafter. The employer then terminated her employment, citing the critical nature of her position and its inability to hold her job any longer.

The employee sued, alleging that the employer failed to accommodate her under the West Virginia Human Rights Act (WVHRA), the state’s equivalent to the Americans with Disabilities Act (ADA). The federal district court granted summary judgment in favor of the employer, concluding that the employee was still unable to work after six months of leave and had not demonstrated the existence of a reasonable accommodation that would meet her needs. This appeal followed.

The Fourth Circuit’s Decision

The Fourth Circuit applied the ADA’s standards in evaluating the employee’s state law claims. The ADA obligates employers to provide reasonable accommodations to qualified employees with disabilities, absent an undue hardship on their business operations. A reasonable accommodation is any modification or adjustment to a job or work environment that allows an employee with a disability to perform the essential functions of the employee’s role or to enjoy the same benefits and privileges of employment as other employees. Such accommodations can include leave and remote work—both of which can be difficult for employers to manage.

In affirming the district court’s grant of summary judgment for the employer, the Fourth Circuit highlighted several key points on reasonable accommodations:

• An indefinite period of leave is not reasonable. The Fourth Circuit affirmed the longstanding principle that “an employer is not required to give a disabled employee an indefinite period of time to correct a disabling condition that renders him unqualified.” (Internal citations and quotations omitted).
• A reasonable accommodation should enable an employee to perform essential functions now or in the near future. While the Fourth Circuit acknowledged that a precise return-to-work date is not required, it noted that the key issue is whether the employee can return at any point in the near future. Here, even after six months of leave, the employee was unable to provide even an approximate return-to-work date.
• Remote work is not a reasonable accommodation for employees who cannot work. The Fourth Circuit observed that, contrary to the employee’s argument, her ability to work remotely prior to giving birth is not necessarily determinative of her ability to work remotely after giving birth. Furthermore, the Fourth Circuit noted that the employee’s statements about being unable to return to work pending multiple surgeries, as well as her receipt of short-term disability benefits, which are awarded when employees are unable to perform their job, confirmed that the employee was unable to work. Consequently, her requested accommodation of remote work was not reasonable. 

Implications for Employers

This case offers several considerations for employers regarding leave and remote work as reasonable accommodations under the ADA:

• Indefinite Leave Is Not a Reasonable Accommodation: Employers are not required to grant an indefinite period of leave as a reasonable accommodation. A specific return-to-work date may not be realistic, but it is reasonable to request at least an approximate date for such return.
• Leave Cannot Impose an Undue Hardship: A return-to-work date does not render the leave automatically reasonable, however. Depending on the circumstances, extended leaves, and even shorter leave periods, may impose an undue hardship that would enable employers to deny the leave request.
• The Interactive Process Is Key: The communication between the employee and employer to clarify the employee’s limitations and assess possible accommodations is a vital part of the reasonable accommodation obligation. It is important for both the employer and employee to participate in this process; the employee cannot simply refuse to provide information, as we have previously discussed.
• Shifting Circumstances May Result in Shifting Accommodations. As we previously noted, accommodations are not set in stone. What may have been reasonable previously may not necessarily be reasonable in the future if circumstances have changed significantly. Thus, although an employee may have previously been allowed to work remotely, that does not mean that remote work continues to be a reasonable accommodation.
• STD Benefits May Mean the Employee Is Unable to Perform His or Her Job Functions. The receipt of STD benefits may indicate that the employee is not capable of performing his or her job functions, including on a remote basis. This understanding can help guide employer decisions on whether the requested accommodation is reasonable.

These principles may assist an employer in navigating the complexities of leave and remote work as possible accommodations, and help ensure compliance with the ADA and state laws.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Employment Law, Leaves of Absence, and State Developments blogs as additional information becomes available.

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