A few days ago I mentioned a recent opinion issued by the Court of Appeals for the First Circuit in Valle-Arce v. Puerto Rico Ports Authority, No. 10-1102 (1st Cir. July 8, 2011).  The opinion seems to stand for the proposition that leave is not a reasonable accommodation under the ADA.  It might be helpful to go into a little more detail about the case.

According to the facts set out in the opinion, the employee, Valle-Arce, had been on a flexible schedule for a number of years to accommodate her disability, Chronic Fatigue Syndrome.  Then she got a new supervisor who gave her a hard time over her flexible schedule.  (So many employment discrimination claims seem to arise out of a new supervisor appearing on the scene.)  Long story short, Valle-Arce took a number of leaves from her job because of the stress caused by her supervisor’s actions.  According to the employer, Valle-Arce was absent six months in a 16-month period.  Valle-Arce was eventually terminated from her employment  for using confidential employee information in an administrative appeal of a disciplinary action and for using agency resources on what the agency characterized as a personal matter.

On appeal, the employer argued that Valle-Arce, because of her leave, was not a “qualified individual” entitled to protection under the ADA because attendance was an essential function of her job.  (It had been a winning argument below, before the district court.)  The Court agreed that attendance is an essential function of any job, but did not find the issue dispositive because Valle-Arce claimed she had been denied an accommodation (a flexible work schedule) that would have allowed her to work, an issue the jury should have been allowed to decide.

In other words, the First Circuit court in Valle-Arce seemed to say that an individual who cannot come to work, either with or without accommodation, is not a qualified individual under the ADA.  Before that determination can be made, however, an employer is required to assess whether there is a reasonable accommodation that will allow an employee with a disability to be able to work.  If there is no such accommodation, then the employee is not a qualified individual under the ADA and is not entitled to anything more, including any more leave.

The First Circuit’s view expressed in the Valle-Arce case, however, seems contrary to views expressed at the EEOC’s hearing on leave as a reasonable accommodation that took place on June 8, 2011 and contrary to the EEOC’s view.  (It also is contrary to what another three-judge panel in the First Circuit held in Rios-Jimenez v. Principi (1st Cir. 1998))  However, other courts have expressed similar views and the language of the ADA as well as the ADA regulations seems to support the First Circuit’s view in the Valle-Arce case.

My advice to employers is seek legal counsel if you are dealing with this issue in your workplace.  Do not be surprised if you attorney takes the view that you must provide leave as a reasonable accommodation unless you can show it is an undue burden, as defined by the ADA.  It is the prudent approach, particularly given the EEOC’s view.  At the very least, an employer must make an individualized assessment of the employee’s need for an accommodation and, if necessary, engage in an informal, interactive process with the employee as part of that assessment.  In other words, talk to your employee, as well as counsel, before you make a decision about him or her.