Now and Again: Reappraising Disability Leave as an Accommodation
BYU L. Rev. (forthcoming)
71 Pages Posted: 12 Aug 2019 Last revised: 5 Mar 2020
Date Written: November 6, 2019
Consider two hypothetical employees: the first has a disorder causing an incapacitating, brief seizure at work; the second needs surgery in the next few weeks to remove a cancerous tumor, the recovery from which will render her unable to work for a long, indefinite period of time. A routine analysis of laws like the Americans with Disabilities Act (ADA) almost certainly requires employers to accommodate the first employee, at least once, as a minutes-long leave is eminently reasonable and would be unlikely to impose undue hardship. Yet, a growing chorus of courts has held that, putative unreasonableness and potential undue hardship notwithstanding, the indefinite and/or long-term nature of the second employee’s accommodation is disqualifying because it prevents that employee from regular attendance which, ostensibly, is as an essential function of the job. In other words, these courts have conditioned disability leave on an ability to work occasionally, or "now and again" in the idiomatic sense, excluding leaves that remove the employee from the workplace indefinitely or for a long time.
In this Article, I flip the script. Viz., I contend that employers never need to accommodate the first employee because that employee, at the time the accommodation would begin, is unable to work. I also argue that courts must reassess accommodating the second employee, grounding a denial of disability leave as an accommodation only on unreasonableness or undue hardship grounds, because taking leave does not imply a present-tense inability to perform the essential functions of the position. Finally, while I decline to supplement extant scholarship on whether indefinite leave is unreasonable, I add that employees must demonstrate a reasonable possibility of returning to work eventually to qualify for accommodations. Hence, I posit that disability leave must be conditioned on employees’ ability to work "now" and "again" in the literal sense.
To defend this thesis, I present a nuanced, linguistic examination of the relevant statutory texts; an analysis of deference owed to agency interpretations; and a review of legislative history that prior scholarship has yet to examine. I also clarify the lower courts’ burgeoning, but confused, debates over accommodating disability leave generally, indefinite disability leave, and long-term disability leave, the last of which was recently considered by the Supreme Court in a petition for certiorari that the Court ultimately denied, hopefully allowing the lower courts sufficient time to pursue clarity. Finally, I situate this Article amidst extant legal scholarship on disability leave as an accommodation and harmonize its thesis with other federal laws.
I conclude by recognizing the normative appeal of a broad entitlement to disability leave as an accommodation and arguing that, in an era where the rule of law is respected out of convenience and not principle, we must abide by all of our laws, even those with which we disagree. As such, I call for amending the ADA before courts inflict a damaging and destabilizing, albeit accurate, textualist blow to it by excluding employees who cannot work presently from its scope.
Keywords: reasonable accommodations, disability leave, employment law
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