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Leave As a Reasonable Accommodation
With the passage of the ADAA, effective Jan. 1, 2009, and the promulgation of its regulations, effective May 24, 2011 (with retroactive application from the earlier date), the time has come for the minority of circuits to join the majority, and explicitly hold that non-indefinite unpaid leave is a reasonable accommodation under the ADAAA. As discussed in more detail below, cases prosecuted by women with difficult pregnancies would be particularly compelling impact cases to push the remaining circuits to explicitly accept non-indefinite leave as a reasonable accommodation.
“Most ' circuits and the Equal Employment Opportunity Commission [EEOC] have concluded that, in some circumstances, an unpaid leave of absence can be a reasonable accommodation under the ADA.” Graves v. Finch Pruyn & Co., Inc. (“Graves I“), 457 F.3d 181, 185 (2d Cir. 2006). The circuits that have accepted leave as a reasonable accommodation currently include the First, Third, Fourth (decided under Rehabilitation Act), Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits, and to an extent the D.C. Circuit.
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