Is leave without pay a reasonable accommodation for a disability qualified federal employee? A 2017 federal Seventh Circuit appellate court determined that leave, even unpaid, was not a reasonable accommodation after a private company employee exhausted 12 weeks of Family Medical Leave Act (FMLA). The court concluded that at the time of the requested accommodation, except for a temporary intermittent illness, the employee must be able to return to work with or without a reasonable accommodation. The employee was fired, and told by his human resources manager that he could reapply with the company when recovering from additional surgery and medically cleared for work. In a brief EEOC unsuccessfully argued that the long-term medical leave of absence was a reasonable accommodation if for a definite time-limited duration, requested in advance, and likely able for employee to perform the essential job functions when returning. Some other courts have followed this employee adverse decision of the Seventh Circuit.
However, EEOC continues to more broadly extend the definition of reasonable accommodation in the context of leave for federal employees. In a recent 2019 decision, affirmed by EEOC Office of Federal Operations in 2021, ruled against the federal agency on several grounds including its denial of the employee’s requested reasonable accommodation – continued leave without pay (LWOP) for disability related absences after having exhausted the FMLA maximum annual 12 weeks....
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