And Unlimited Unpaid Leave May Not Be Reasonable Either
Elsewhere, in this E-Update, we discussed how unlimited paid sick leave was not a reasonable accommodation under the Americans with Disabilities Act where in-person attendance is an essential function of the job. In another case emphasizing the essential nature of in-person attendance for certain jobs, the U.S. Court of Appeals for the First Circuit rejected as not reasonable a teacher’s request for a third extension of her unpaid leave, lasting an additional three-to-six months.
In Der Sarkisian v. Austin Preparatory School, at the beginning of the school year, the teacher was given a four-week leave for hip surgery. Due to complications, she required another surgery and leave of an additional three months, which the school granted. However, her request for yet another three-to-six months of leave was denied and her employment terminated, with the offer to reapply when she was cleared to work. The teacher sued for disability discrimination under the ADA and state law, among other things.
Under the ADA, a plaintiff must demonstrate that they are a qualified individual with a disability, meaning that they are capable of performing the essential functions of the job with or without reasonable accommodation. The First Circuit found that the teacher was not qualified because she was unable to meet the essential function of in-person attendance for classroom teaching, despite her argument that an accommodation of the additional leave would eventually enable her to do so. Given the need to provide consistency to the students and to retain the teacher’s replacement, an open-ended leave was not a reasonable accommodation.
Moreover, although the First Circuit acknowledged that leave extensions may be reasonable under very specific circumstances, the teacher’s request for yet another extension was not “facially reasonable” given the school’s needs. The First Circuit also rejected the argument that the school’s prior policy of offering 110 days of sick leave and a year-long absence meant that the teacher’s request was reasonable, since the school had deliberately removed those policies.
This case is helpful in reinforcing the principle that open-ended leaves typically are not reasonable under the ADA. Moreover, repeated leave extensions – particularly those without a specified end date – may also be unreasonable.