Leave as an Accommodation: When is Enough, Enough?

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.