July 22, 2025
Vague Return-to-Work Date Dooms ADA Claim
The U.S. EEOC’s guidance provides that an extended leave of absence (LOA) beyond the employer’s policy may be a reasonable accommodation under the Americans with Disabilities Act (ADA). The guidance also explains that an indefinite LOA, “will constitute an undue hardship, and so does not have to be provided as a reasonable accommodation.” But what about a request for an LOA with a vague deadline such as, “[I] probably [will] be released in September or October”?
After six months of leave, an employer terminated an employee whose last notice suggested she was still under “intense care,” had another surgery scheduled in a few days, her recovery time would be about four-to-six weeks, and then followed by another potential surgery. The employer then notified the employee that they were terminating her employment “given the critical nature of [your] position, we can no longer hold your job.” The now former employee then sued for (1) failure to accommodate; (2) discriminatory discharge; and (3) retaliatory discharge. On July 22nd, the 4th U.S. Circuit Court of Appeals (covering MD, VA, WV, NC, SC) affirmed the lower court’s dismissal of all three claims.
On the failure to accommodate, the employer declined the employee’s suggestions including continued unpaid leave or remote work. Regarding the continuation of unpaid leave, the court found, “Nothing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect…an employer is not required ‘to give a disabled employee an indefinite period of time
to correct [a] disabling condition’ that renders him unqualified.'”
As to remote work as a reasonable accommodation, the court found the former employee, ““failed to demonstrate that, at the time of her…termination, she was able to work at all, whether in person or remotely.”
On the discriminatory discharge claim, the court noted that the former employee failed to show what accommodation could have been provided that would have enabled her to perform the essential functions of the job. As such, she was not a “qualified individual.”
Finally, on the claim of retaliatory discharge, the former employee failed to show that she had engaged in a protected activity. While she requested accommodations, the court deemed them to be not reasonable. Thus, she had not engaged in a protected activity by requesting a “reasonable accommodation.”
NOTE: This case alleged a violation of West Virginia’s Human Rights Act and not the ADA. However, the court noted, “At times, this opinion relies on case law examining the Americans with Disabilities Act (ADA)…This case law is ‘instructive’ as ‘the rights under the ADA and the WVHRA are coextensive.” So, there are a few practical take-aways.
Proactive Tips.
FMLA & ADA Overlap. This employee first exhausted all 12 workweeks of FMLA leave. The employer then granted an additional four months of leave. The court reminds us that leave beyond the 12 weeks provided by the FMLA may be a reasonable accommodation. Consider granting an extended LOA that will enable you to fill an employee’s job if needed but still keep the employee on leave status.
Interactive Dialogue. The employer had continuous communication with the employee while she was out on leave. When each extension of leave was coming to its conclusion or deadline, they would reach out and ask for an update. Don’t leave your employees hanging out there on an extended leave and expect them to update you. If you have not heard from them in a while and the leave deadline is coming up, reach out. Keep them engaged.
