Unlimited Leave of Absence – A Reasonable Accommodation?

By: Attorneys Dean Dietrich and Samuel Bach-Hanson – Weld Riley, S.C.

Whether to grant a leave of absence or for how long as a reasonable accommodation for an employee suffering from a disability is a nagging question faced by human resource professionals.

Granting a leave of absence shows that the employer is accommodating the medical condition of an employee, but it creates turmoil within the workplace when productivity is necessary.

Unfortunately, there is no bright line test that can be relied upon by human resource professionals when considering whether or not to grant a leave of absence to an employee with a medical condition.  The 7th Circuit Court of Appeals, which oversees federal law for Wisconsin employers, has long maintained that it will not serve as a “super resource department” and will not second guess the decision of the employer regarding the granting of a leave of absence.  The 7th Circuit Court of Appeals, like all federal courts, have recognized that a leave of absence may be a reasonable accommodation for an employee that has a medical condition preventing the employee from returning to work.

In Wisconsin, the courts have recognized the need to grant a leave from work for an employee that is in the healing period with a clear likelihood of returning to the workplace.  However, the granting of an indefinite leave of absence until the employee is healed does not seem to be supported by either state or federal courts and does not address whether a limited term leave would be considered reasonable under the specific work circumstances of the employee.

Courts have also recognized that unpredictable attendance is not something that must be tolerated by an employer.  A recent decision from the 10th Circuit Court of Appeals found that an employee who was constantly absent from work and often without warning was not able to perform the essential functions of regular job attendance and therefore did not qualify for a reasonable accommodation from the employer.

Each situation depends upon the needs of the employer and the limitations of the employee, however, it is clear that attending work on a regular basis is an essential function of almost all jobs.  Working from home, a phenomenon brought into the limelight during the COVID-19 pandemic, makes this more challenging for employers, especially when the employee can perform their necessary work without being in the physical workplace.  Employers must be prepared to show that regular work attendance is necessary in order for the employee to be successful in performing their job duties.

It seems that employers will continue to be plagued by questions of whether an employee request for a medical leave is reasonable under the circumstances.  Employers should insist upon information from the treating professional and then make judgments based upon the information provided by the employee and the treating professional.  An employer should also analyze whether or not the company can continue with the employee away on medical leave and be sure to confirm the duration of any leave of absence with the intention for the employee to return to work.