Can an Employee Take an Indefinite Leave of Absence? The Ninth Circuit Says Yes!

Generally, Employers, to prevent discrimination on the basis of a disability under the Americans With Disability Act (“ADA”), are required to provide reasonable accommodations to applicants and employees with disabilities. Now, you may be asking yourself, what is a “reasonable accommodation”? A reasonable accommodation is when an employee requires a modification in the work environment or in the way things are usually done in the workplace impacting the employee’s work which allows that individual with a disability to enjoy equal employment opportunities and remain working. This may include providing a seat for an employee whose job requires long periods of standing, adjusting a start time for an employee who has a sleep disorder, and even providing leave when needed for a disability, even when leave is not offered to other employees.

Previously, it was understood that leave (whether paid or unpaid) was not indefinite and indefinite leave was never reasonable under the ADA. However recently, the Ninth Circuit Court of Appeal (“Ninth Circuit”), in Kachur v. NAV-LVH, LLC (see the case here) introduced controversy to that understanding. The Ninth Circuit opined that in situations where there is no specific date of return, extending leave may be reasonable if the employee provides the employer with regular updates throughout their recovery process. With that ruling, indefinite leave is now possible! Courts now may find that an employer is required to continue to allow an employee to remain on, as long as that employee regularly provides the employer with regular updates, which potentially could last forever.

Though we anticipate many challenges to this decision and position taken by the Ninth Circuit, Employers need to know how to approach an accommodation request properly.  As a result of the complexity of the ADA, and ever-changing legal position on the topic, it is important to remember that applying the ADA and providing accommodations to your employees is fact-specific and, should be made on a case by case basis.  For your questions regarding your requirements under the ADA and any potential accommodations you are considering providing (such as placing an employee on leave), remember to consult with the Employer Lawyers at Chauvel & Glatt.

The material in this article, provided by Chauvel & Glatt, is designed to provide informative and current information as of the date of the post. It should not be considered, nor is it intended to constitute, legal advice or promise similar outcomes.  For information on your particular circumstances, please contact Chauvel & Glatt at 650-573-9500.

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