Leave as an Accommodation: When Is Enough, Enough
![handle is hein.journals/clevslr62 and id is 445 raw text is: LEAVE AS AN ACCOMMODATION: WHEN IS
ENOUGH, ENOUGH?'
STACY A. HICKOX' AND JOSEPH M. GUZMAN**
ABSTRACT
The right to reasonable accommodations under the Americans with
Disabilities Act includes leave that will enable an employee with a
disability to return to work rather than being discharged. This right may
seem unreasonable for an employer needing employees to be at work to
be productive, raising the question of when leave as an accommodation
becomes unreasonable or imposes an undue hardship on an employer. In
the absence of specific guidance from the Supreme Court, the circuit
courts apply a variety of approaches, ranging from individualized analysis
to determinations that any leave exceeding some number of weeks is
unreasonable. In this paper, three hundred and fifty-three decisions
addressing this question have been analyzed to determine which factors
are determinative of reasonableness, including factors identified in the
various approaches of the circuit courts as well as those which economists
would use to determine the value of an employee and the cost of replacing
that employee.
I. ACCOMMODATIONS UNDER THE ADA ................. ............... 441
A. Leave as an Accommodation. .................. ....... 444
B. EEOC Guidance ........................................ 445
C. Research on Accommodations. ................... ..... 446
II. JUDICIAL TREATMENT OF REQUESTS FOR LEAVE AS ACCOMMODATION 451
A. Amount ofLeave ........................................ 452
B. Leave Would Not Result in Qualification ................ 455
C. Indefinite Leave is Unreasonable ....................... 457
D. Consideration ofLeave Policies ........................ 463
1. Supreme Court Consideration of Employer Policies ............ 464
2. Courts' Deference to Leave Policies.... .................. 467
Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999) (But the fact that [the
employer] had infinite patience does not necessarily mean that every company must put up
with employees who do not come to work. Nor must every company hire replacements for
absent employees and call that a reasonable accommodation. The issue before us is, when is
enough, enough?).
Assistant Professor, Michigan State University School of Human Resources and Labor
Relations; J.D., University of Pennsylvania Law School; B.S., Cornell University School of
Industrial & Labor Relations. The authors would like to thank Megan O'Toole & Katie Seager
for their research on this paper.
Joseph Guzman is an Assistant Professor in the School of Human Resources and Labor
Relations at Michigan State University. He holds a doctorate in Business Administration and
Policy from the Stanford Graduate School of Business, masters' degrees in statistics,
economics, and business research from Stanford, and an MBA from the University of
Arizona. His research interests are focused on human capital development and policy.
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Leave as an Accommodation: When Is Enough, Enough
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