Time Off Work as a Reasonable Accommodation

You may have the right to time off under the ADA, unless it creates undue hardship.

By , J.D.
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Often, employees with disabilities need time off work for surgery, therapy, recovery, rest, or ongoing medical treatment. If you have a disability as defined by the Americans with Disabilities Act (ADA), you may be entitled to time off from work as an accommodation, as long as it doesn't create undue hardship for your employer. You have the right to accommodations that are reasonable, including changes to your job, your schedule, or workplace policies or rules.

Disability Discrimination and Reasonable Accommodation

The ADA prohibits discrimination against employees with disabilities. This means, for example, that your employer may not deny your request for sick leave because you need it to recover from a disability if your employer routinely grants sick leave requests from other employees. This would amount to treating you worse because of your disability, which is illegal under the ADA. You are entitled to the same privileges and benefits, including time off work, as other employees.

The requirement to provide reasonable accommodations is a different type of legal obligation: Rather than treating you the same as employees who don't have disabilities, your employer may have to treat you differently to accommodate your disability. For example, if your employer does not allow anyone to take time off work until they have worked for the company for at least six months, it may need to depart from this rule if you need time off for a disability. Your employer cannot simply point to its usual rule or policy and say, "we don't allow anyone to take time off during the first six months, so you can't take time off either." Instead, your employer must give you time off as a reasonable accommodation, despite its usual rule, unless doing so would create undue hardship.

Leave From Work as a Reasonable Accommodation

If your employer doesn't provide any type of sick or vacation leave, and you aren't entitled to leave under the Family and Medical Leave Act, or FMLA, (perhaps because your employer has fewer than 50 employees), you can ask your employer for time off as a reasonable accommodation. Your employer must grant you a reasonable amount of time off when you need it because of your disability unless it can show that giving you time off would create an undue hardship on the business. For example, if you need four weeks off work to recover from surgery and cancer treatment, you should be able to take that time off (unpaid) as a reasonable accommodation.

If your employer does have a leave policy or you are entitled to leave under the FMLA or other laws, you can use that time off for your disability and be guaranteed a job to come back to. But what if you need more time off that the policy or law provides? For example, the FMLA gives eligible employees the right to take up to 12 weeks off for a serious health condition, a category that includes many disabilities. Say if you need 16 weeks off work to recover from surgery and cancer treatment, the last four weeks of your leave would go beyond what the FMLA provides. However, you still may be entitled to take that time off as a reasonable accommodation for your disability. Unless your employer can show that giving you four more weeks off would create an undue hardship on the business, it must grant your request.

Employers are not required to provide paid leave as an accommodation (beyond what their usual policies allow). And, employers are not required to give you an indefinite period of leave. If you and your doctor can't say when or whether you'll be able to return to work, your employer can deny your request for open-ended leave as an undue hardship.

Requesting Time Off as an Accommodation

If you will need time off from work for your disability, you must request it. It's best to make your request in writing, so you have a record of the date and details. Let your employer know that you have a disability for which you need time off, as an accommodation under the ADA. Explain why you need time off, how much time you need, and when you will be able to return to work. You might also attach a note from your doctor, explaining you need for leave. Of course, you can't always plan in advance: If you need emergency surgery, for example, you should let your employer know as soon as possible that you need time off as an accommodation for your disability.

Once you make your request, your employer must start a dialogue with you to figure out how to accommodate your disability. You are not necessarily entitled to the exact time off you request, as long as your employer provides an alternate accommodation that works.

Example: John works as a salesperson, driving to meet with clients, making deals, and servicing those relationships for the company. He asks for ten weeks off for back surgery and recuperation. His doctor has said he won't be able to drive during that time. His employer asks whether John can stay in touch with his clients by phone during his recovery, to make sure those important accounts run smoothly. After talking to his doctor, John responds that he won't be available by phone for the first few weeks, because he will be taking narcotic pain medication, but he can be available to make a couple of calls each day after that. This is an effective reasonable accommodation.

Your employer may stay in touch with you during your time off, as long as it is not harassing you. For example, if you take eight weeks off for cancer treatment, your employer can check in after a few weeks to ask how you are doing, and check in again as your leave comes to a close to find out whether and when you will be able to return to work (and whether you will need any accommodations when you come back).

If You Need More Time Off

You might need more leave than you originally thought. Perhaps your pain following surgery is greater than you expected, or your physical therapy is progressing more slowly than your doctor predicted. As soon as you know you will need more time, tell your employer. For example, if you requested a month off for surgery, and you had to be hospitalized two weeks after your surgery for a life-threatening infection, you should tell your employer that you will need more time. Your doctor should be able to help you come up with a new time frame for returning to work.

If You Need Accommodations to Return to Work

When you are ready to return to work, you may need additional accommodations. For example, you may have lifting restrictions following back surgery, limited mobility after suffering a major injury, or fatigue after cancer treatment. As soon as you know that you may need accommodations to return to work, let your employer know. Your employer may need documentation and more information about your restrictions. The same rules that apply to time off as an accommodation apply to other accommodations: Your employer must work with you to come up with an effective reasonable accommodation that will allow you to do your job and won't create an undue hardship.

When Time Off Is an Undue Hardship

An employer doesn't have to provide an accommodation that creates undue hardship: significant costs or burdens on the employer, considering the employer's size, resources, and structure. When determining whether an accommodation creates an undue hardship, your employer must look at how your absence will affect the company. If, for example, you are the only person who performs a vital company function, and your disability sometimes requires you to be absent from work without any notice, giving you time off under these conditions might create undue hardship. On the other hand, if you are one of many employees who perform the same functions (for example, in a call center or on a manufacturing line), and others can easily fill in for you when you must be absent, giving you time off is unlikely to create undue hardship. Similarly, if your company routinely grants requests for unpaid leave for employees to take trips or further their education, it would be hard-pressed to show that granting you a similar amount of leave for your disability is an undue hardship, unless your absence would be uniquely disruptive.

If Your Employer Won't Cooperate

If your employer has denied your request for time off, refused to discuss possible accommodations, refused to return you to work, or otherwise denied your accommodation request, you should talk to an experienced disability lawyer right away. A lawyer can assess whether your employer has violated the ADA and help you decide what to do about it.

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