While employers generally accept that they cannot apply a maximum leave period after which employees are automatically terminated, they continue to struggle with how much leave must be provided as a form of accommodation under the ADA.  There is little dispute that leave for an indefinite period where the employee has a long term chronic condition is not a reasonable accommodation, but how much time must the employer give?  Is a month of extended leave reasonable?  Two months?  Four months?

The Eleventh Circuit Court of appeals recently took a step toward providing employers with guidance on the ADA’s requirements for job protected leave as an accommodation.  In Billups v. Emerald Coast Utilities Authority, the Court noted that the accommodation language of the ADA is written in the present tense – that is, whether an employee “can” (not “will be able to”) perform the essential functions of the job with or without accommodation.  As such, when an employee seeks job protected leave as an accommodation, the employee must show that “his requested accommodation would have allowed him to return to work “in the present or in the immediate future.”  An accommodation is therefore unreasonable if it would only allow an employee work at some uncertain point in the future.

There is nothing particularly novel about affirming the denial of leave where the return to work date is unspecified.  In the Billups case, however, the Court addressed a situation where the employee’s condition was likely to be corrected at some point in the future.  In other words, it was undisputed that the employee’s restrictions were expected to be lifted but the issue was when.  Mr. Billups was provided with over six months of leave.  At that time of his termination his surgeon indicated that he “might” be able to return to work in another month but that he had to be evaluated again.  His physical therapy was “projected” to end in about a month as well.  The Court concluded that there was only a “possibility” Mr. Billups could return to work in a month but there was “no certainty” that he could do so.  Because of the lack of certainty the Court concluded that this was effectively an open ended request for sufficient time to ameliorate Mr. Billups’ condition and he therefore was not denied a reasonable accommodation.

Employers must continue to exercise extreme caution in these situations.  While the Court in Billings focused on the lack of certainty about the employee’s return to work date, employers must be careful not to take this concept too far.  As those who practice in this area know, every situation is unique and must be treated as such.