In an unpublished opinion, the 2d U.S. Circuit Court of Appeals has held that an employee who requested a leave of absence to consult an orthopedic surgeon was unable to prove that the absence would allow him to perform the essential functions of his position. Therefore, the absence was not a "reasonable accommodation" for purposes of the ADA. Graves v. Finch Pruyn & Co., 2d Cir., No. 09-1444, unpublished, 11/17/09.

George Graves worked as a paper inspector for Finch Pruyn & Company. Graves requested an unpaid leave of absence from his job to consult with a surgeon about a foot problem from which he suffered. When Graves subsequently was terminated from his employment, he sued the company for discrimination under the Americans with Disabilities Act. Finch’s motion for summary judgment was granted by the district court, which held that the leave sought by Graves was not a reasonable accommodation and, therefore, that Graves was unable to set forth the required prima facie case. On appeal, that decision was upheld by the Second Circuit.

Under the ADA a "reasonable accommodation" is something that enables a disabled employee to perform the essential functions of his job. An employer typically is required to engage in an interactive process with a disabled employee and to work with him to implement a reasonable accommodation, unless such accommodation creates an undue hardship for the company. In Grave’s case, there was no dispute that immediately prior to the request for leave, Graves could not perform the essential functions of his job, which required standing for long periods of time and lifting and pushing large rolls of paper. His request for a leave of absence was for the specific purpose of consulting with a surgeon. However, the request included no assurance that such consultation would then allow Graves to be able to perform the essential functions of his job. In fact, a report from one of Graves doctors indicated that it was "unlikely" that Graves could return to his previous occupation after the contemplated surgery. Further, the same doctor provided a report that ultimately allowed Graves to qualify for a disability retirement. Based on all of this, the Court concluded that the evidence did not provide assurance that Graves’ would ever be able to perform the essential functions of his job, even with the request two-week leave of absence. Graves therefore could not support the element of his prima facia case that required him to show that he was able to do the essential functions of his job with an accommodation.

The Court made an additional, and notable, point: that an employee may not rely on a company’s failure to engage in the interactive process if he cannot also show that a reasonable accommodation actually exists at the time of the complained-of adverse action. Employers should not interpret this holding to mean that they can ignore the obligation to interact with an employee regarding a requested accommodation. Instead, an employer should recognize that before rejecting an employee’s request for job modification, full and considered evaluation of the proposed "accommodation" should be done in order to determine whether such request will enable the individual to return to his or her essential functions.