[Editor's note: The author is a partner at Riegels, Campos & Kenyon LLP. He represents Memorial Hospitals Association in the Humphrey case.]

The Americans With Disabilities Act, codified at 42 U.S.C. §12101 et seq., was enacted less than ten years ago. Since its enactment, the ADA has significantly changed the way in which employers respond to requests from partially-disabled workers for changes in their work environments and duties.

The Ninth Circuit's holding in Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001), overturned a summary judgment for the hospital in an ADA case and held, inter alia, that an employer has a continuing obligation to provide a reasonable accommodation including, under the appropriate circumstances, a leave of absence for an indefinite period. In Humphrey, a hospital discharged a transcriptionist for repeated absence and tardiness. Over a period of years before the discharge, the hospital had earlier tried various accommodations to address her obsessive-compulsive disorder that she blamed for her erratic attendance. The hospital denied her request to work at home and terminated her employment due to her continuing absenteeism and tardiness. On the face of it, the Ninth Circuit's holding does not sound revolutionary. However, on closer examination, it imposes unique burdens upon California employers and other employers in the circuit in the following ways:

1. The decision is contrary to decisions in seven other circuits, holding that a requirement of indefinite leave of absence is per se unreasonable;
2. Neither the ADA nor implementing regulations specifically list a leave of absence much less a leave of absence of indefinite duration as a reasonable form of accommodation;
3. The Ninth Circuit's opinion compels employers to perpetually consider an open ended leave of absence as a means of overcoming the disability even if the employee never requests a leave of absence and may have even earlier rejected the employer's offer of a leave of absence; and
4. In reaching the decision, the Ninth Circuit did not even require that the employee show medical evidence that a leave of absence would be effective to overcome the disability.

Thus, the Humphrey decision breaks new ground.

As most people know, the ADA protects qualified individuals with a disability. An employee is deemed a qualified individual if he or she is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the position that such individual holds or desires." 42 U.S.C. §12111(8). It follows that an employer must offer an accommodation if it would likely enable the qualified individual to perform the essential duties of the position.

After Humphreys, it is likely that employees will now argue that the Ninth Circuit expands that obligation and compels an employer to offer leave of indefinite length as an accommodation to individuals who maybe, someday, might be able to perform the essential functions of his or her job. The opinion forces employers to speculate whether an individual might, given enough time away from work, overcome whatever disability confronts him or her and gain or regain the capacity to perform the essential duties of his or her job.

But how much is enough time away from work? The argument that an indefinite leave of absence is a reasonable accommodation is internally inconsistent. How can a leave of absence be deemed reasonable if, at the time it is granted, the employer does not know if it will last a week, a month or a year? In most instances, the longer the leave, the greater the burden on the employer. As the duration of the leave extends, the more difficult it is to find interim employees to replace the individual on leave and to plan for staffing needs. Moreover, since the duration of the leave cannot be defined before the leave begins, any changes that will occur in the workplace during the leave cannot be forecast. At the time that the employer is faced with deciding to grant or deny an unlimited leave of absence, it cannot weigh the burden that such a leave will impose upon it. It will thus be very difficult for the employer to determine whether or not the leave is unreasonable.

Finally, there is nothing to prevent the employee who is on leave from continually insisting that just a little more time off should produce the long-awaited relief from the disability. The employer may have to keep the employee "on the books" until the disability is ameliorated, the employer says "enough is enough," or the employee confronts the reality that the disability is not abating as a result of the leave of absence and resigns.

Because of the greater burden and economic consequences, the decision potentially imposes on California employers, there is keen interest in whether the United States Supreme Court will grant the employer's petition for writ of certiorari and eventually overrule the Ninth Circuit's opinion in Humphrey, especially as it relates to indefinite leaves of absence as accommodation. If the decision of the Ninth Circuit is overturned, it would refocus the joint efforts of disabled workers and employers on forms of accommodation that are more certain in their costs and benefits.