2nd Circuit Dodges Questions on Leave as Reasonable Accommodation -- And a Bigger Problem

While hinting at the potential problems with requests for leaves of absence as reasonable accommodations under the Americans with Disabilities Act, the 2nd Circuit avoided most of those issues when it reversed an employer's summary judgment on that issue. Instead it held the district court drew an improper inference that the employee had requested an indefinite leave of absence -- in its view of the appropriate inferences, a jury could conclude the employee asked for a two week leave of absence to see a specialist. The Court could not say such request was for an unreasonable accommodation, given that the employer improperly failed to consider it. Graves v. Finch Pruyn & Company, Inc. (2nd Cir. 7/12/06) [pdf].


But in a footnote discussing the question of leaves of absence as accommodations, the Court commented:

We note, however, that the idea of unpaid leave of absence as a reasonable accommodation presents Â?a troublesome problem, partly because of the oxymoronic anomaly it harborsÂ? Â? the idea that allowing a disabled employee to leave a job allows him to perform that jobÂ?s functions Â? Â?but also because of the daunting challenge of line-drawing it presents.Â?

The Court also wanted to make sure it did not foreclose a second shot at summary judgment by the employer, noting:

On remand, Finch Pruyn should be allowed to move for summary judgment based upon insufficient assurance of GravesÂ?s successful return to work. At this stage, we decline to consider this argument without benefit of the district courtÂ?s analysis.

Some might see this as a little bit of passing the buck back to the district court, perhaps to do its "dirty work" for it. However, I think it may be more a symptom of how difficult it is for courts (not to mention employers) to deal with the ADA -- trying to balance the apparent breadth of the law, with a desire not to allow it to overwhelm both employers and the courts.

The problem lies in one of the fundamental aspects of the ADA -- whether an employee is disabled -- is an after the fact determination. As our ten plus years of history now makes clear, it is frequently not until the appellate court weighs in, that we know the answer to that basic question. However, the obligations of the employer under the ADA depend on it - if the employee is not disabled, no obligation; if the employee is disabled, then the employer had obligations. Finding out five years after the employment decision was made is hardly helpful. (Nor does it seem quite fair that an employer has to make that decision in a short period of time, whereas the courts have difficulty making it after years of litigation and with as much time as they choose to take.)

Is there any solutiondilemmat dilemna short of treating every close case as a disability? If not, is that really what Congress intended?