Time Off Work as a Reasonable Accommodation

The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to help employees with disabilities perform their jobs. Not every employee is entitled to an accommodation, however. And, not every accommodation is considered reasonable under the ADA. An employer need not provide an accommodation that would create an undue burden on the company.

Reasonable accommodations take many forms, from enlarging bathrooms stalls to accommodate a wheelchair to providing TDD equipment to allow a person with impaired hearing to communicate by phone. Time off work or a remote working option may also be a reasonable accommodation. However, the ADA doesn't require employers to give unlimited leave to someone with a disability.

Who Is Entitled to a Reasonable Accommodation?

Employers are required to make reasonable accommodations to allow employees with disabilities to do their jobs. Only qualified employees with disabilities are entitled to accommodation. An employee is qualified if:

• the employee has the necessary education, training, experience, and other requirements for the job, and
• the employee can perform the essential functions of the job – those duties that are fundamental to the position – with or without a reasonable accommodation. If an employee won't be able to do the job even with an accommodation, the employee isn't qualified and, therefore, isn't protected by the ADA.

What Is a Reasonable Accommodation?

A reasonable accommodation is assistance (technological or otherwise) or a change to the workplace or job that allows the employee to perform its essential functions. Examples include:

• providing voice-recognition software for an employee with carpal tunnel syndrome
• altering the height of a desk for an employee in a wheelchair
• providing a distraction-free environment for an employee with attention deficit disorder; or
• allowing a diabetic employee to take more frequent breaks to eat, drink, take medication, or test blood sugar levels.

Once an employee requests an accommodation, the employer and the employee must talk and work together to see whether a reasonable accommodation is possible.

The employer doesn't have to grant the particular accommodation an employee requests, as long as the employer works with the employee to find an effective accommodation. For example, if an employee requests a very expensive accommodation, the employer may provide a less costly solution, as long as it allows the employee to perform the job.

Undue Hardship

An employer does not have to provide an accommodation if doing so would create an undue hardship. Whether an accommodation creates an undue hardship depends on a number of factors, including:

• the nature and cost of the accommodation
• the size and financial resources of the business and the facility where the employee works
• the structure of the business, and
• the effect the accommodation would have on the business.

An accommodation that would be extremely costly could well be an undue hardship. Even a less expensive modification could be an undue hardship, if it would change the nature of the business. For example, even if it would be relatively cheap to install bright lighting in a previously dimly lit, romantic restaurant, that change would fundamentally alter the character of the business in way that could be an undue hardship.

Time Off or Remote Work as a Reasonable Accommodation

An employee with a disability might need leave from work—or the option to work remotely—as an accommodation. For example, an employee with a disability might need time off for surgery, intensive cancer treatment, rehabilitation for substance abuse, or a long period of rest following a serious injury.

Whether an employer has to offer such time off as a reasonable accommodation depends, ultimately, on whether it would create an undue hardship. Here are some things courts have considered when deciding whether leave constitutes a reasonable accommodation.

• The nature of the job. If regular attendance is an essential function of the job (as it often is), some courts have found that an employee who needs a significant amount of time off is not qualified for the job, and therefore is neither protected by the ADA nor entitled to a reasonable accommodation.
• How much leave the employee needs. While many courts have found that an employer is not required to provide open-ended leave, courts are more likely to see a finite period of leave as a reasonable accommodation. If an employee will be able to return to work on a date certain, a court is more likely to find that the employee is entitled to this time off.
• What the employer does for other employees. If an employer grants a remote work option to other employees, it will be hard-pressed to claim that allowing an employee with a disability to work remotely is an undue hardship.

What About the Family and Medical Leave Act?

An employee who is covered by the federal Family and Medical Leave Act (FMLA) is entitled to up to 12 weeks of leave per year for his or her own serious health condition, among other reasons.

So, an employee whose disability also qualifies as a serious health condition under the FMLA may be entitled to take 12 weeks off to recuperate. (Learn much more about the FMLA, including what counts as a serious health condition, at our FMLA page.)

An employee who is unable to return to work after using up the 12 weeks of FMLA leave may be entitled to more time off as a reasonable accommodation. The employee's entitlement depends on whether additional leave would create an undue hardship, considering the factors listed above. For example, an employee who needs a couple of additional weeks off to recover from surgery might be entitled to that leave as a reasonable accommodation, particularly if the employer has granted lengthy leaves for other purposes.

However, an employee who is unable to do the job following FMLA leave, and doesn't know whether or if it will ever be possible to return to work, is almost certainly not entitled to take open-ended time off as an accommodation.