November 16, 2023

SCOTUS Declines to Hear ADA Leave as a Reasonable Accommodation Case

An employee seeks a reasonable accommodation. You determine that you are not able to provide any reasonable accommodation for the employee to perform the essential functions of the current job. You have no vacant position into which you can transfer or place the employee. What do you do? Fire the employee? Invite the employee to resign? What about an unpaid leave of absence?

This question was posed to the U.S. Supreme Court. Is an unpaid leave of absence a reasonable accommodation under the Americans with Disabilities Act if the employer cannot reasonably accommodate the employee in the current job and has no vacant position into which it can transfer the employee?

On July 10, 2023, the 4th U.S. Circuit Court of Appeals ruled, “Yes.”

On September 15, 2023, the employee appealed the decision to SCOTUS, petitioning the Court to decide whether:

  1. an employer’s decision that it cannot modify the equipment used by [an employee] dispositive proof that the employer cannot offer a reasonable accommodation for the employee; and
  2. an employer’s selection of the equipment used to perform a job precludes a court from considering whether modification of such equipment would still allow [an employee] to perform the essential functions of his job under the ADA?

On November 16, 2023, SCOTUS declined to hear the case.

Implications? The answer to the question continues to be “it depends” upon where the question is being asked. If it is related to an employee working in MD, VA, WV, NC, or SC (all covered under the 4th Circuit), the answer is still yes. If your employee is working in another state, the answer depends upon the current case law in that circuit, aka ask your company’s legal counsel.


  1. Other than the filing of a lawsuit, this story had a positive ending. The employee was able to return to work and his job after several months of leave. It was after he returned that he filed the lawsuit alleging the unpaid leave of absence was not a reasonable accommodation because “[he] did not want medical leave” and  such leave “prevented [him] from earning his wages.”
  2. This employee was a union employee. Part of the employer’s reason for not providing the accommodation the employee requested was because of a potential violation of the collective bargaining agreement. The 4th Circuit’s decision might have been different if the fact pattern was the same but in a non-union environment.