by Tristan Sirls*

The Americans with Disabilities Act of 1990 (“ADA”) prohibits employers from discriminating against their employees with disabilities through a variety of means, including by “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” Circuit courts are divided, however, on whether leaves of absence qualify as reasonable accommodations under the statute. While several circuits approach leaves of absence on an individualized basis, the Seventh Circuit in Byrne v. Avon Products found that “not working is not a means to perform [a] job’s essential functions” and adopted a categorical rule barring leaves of absence from qualifying as reasonable accommodations. This Contribution argues that the Seventh Circuit’s categorical ban on leaves of absence as reasonable accommodations is inconsistent with the ADA’s text, contrary to Supreme Court precedent, and unnecessary as a practical matter. Courts must instead evaluate leaves of absence like any other potential accommodation: through an individualized inquiry that considers the burdens that a grant or denial would impose on all parties.

The Americans with Disabilities Act of 1990 (“ADA”)1 is a comprehensive statute with a “sweeping purpose intended to eliminate discrimination against disabled individuals and to integrate them into the economic and social mainstream of American life.”2 To that end, the ADA requires employers to take “affirmative conduct”—oftentimes in the form of granting reasonable accommodation requests—to increase access to employment for people with disabilities.3 Under the ADA, if an employer fails to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” that constitutes discrimination.4

For individuals with disabilities that cause sporadic, recurring absences, a leave of absence may best accommodate their disability. But there is a split among the circuit courts on whether leaves of absence can constitute reasonable accommodations. Several circuits have correctly recognized that any categorical ban on a particular form of accommodation ignores the individualized attention the Supreme Court deemed “essential” to disability claims.5 The Seventh Circuit, in contrast, held that leaves of absence categorically do not qualify as reasonable accommodations under the ADA.6 But this rule runs afoul of the ADA’s text and Supreme Court precedent, both of which require an individualized inquiry to determine the validity of a reasonable accommodation claim.7 A categorical ban on leaves of absence also finds no support in employers’ potential hardship objections, as a matter of both procedure and congressional policy. And although all employees may seek leaves of absence through the Family and Medical Leave Act (“FMLA”),8 that must not preclude employees with disabilities from seeking similar accommodations under the ADA.

The ADA defines “reasonable accommodation” broadly, and nothing in its text suggests that leaves of absence are per se invalid accommodations. Under § 12111(9)(B), a “reasonable accommodation” may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices . . . and other similar accommodations for individuals with disabilities.”9 A leave of absence, if not primarily qualifying as a “modified work schedule,” would fall under the “and other similar accommodations” catchall.10 Thus, the definition of reasonable accommodation does not clearly exclude leaves of absence from its scope, and the Seventh Circuit took no issue with leaves of absence falling under the ADA’s definition of a reasonable accommodation.11

Rather, the Seventh Circuit found that leaves of absence compromise the ADA’s “qualified individual” requirement.12 The ADA requires employers to make reasonable accommodations for employees that are “qualified individuals.”13 To be categorized as a qualified individual under the ADA, an employee must be able to perform the “essential functions” of the employment position “with or without reasonable accommodation.”14 And an Equal Employment Opportunity Commission (“EEOC”) implementing regulation interprets “reasonable accommodation” to mean a modification that “enable[s]” a qualified individual with a disability to perform the essential functions of the position.15 The regulation’s use of “enable” confirms that courts must assess the qualifications of an employee as if the accommodation were granted and in full effect.16 Thus, any court evaluating whether an employee is a qualified individual must consider whether the employee, with the effects of their proposed accommodation, could perform the essential functions of the job position.17 If the employee satisfies that standard, then they are qualified for the position and protected by the ADA.18

The Seventh Circuit’s categorical ban on leaves of absence, however, contravenes this “with or without reasonable accommodation” statutory language. In Byrne v. Avon Products, the Seventh Circuit instead relied on “common[]sense” to determine that “not working is not a means to perform the job’s essential functions.”19 The Seventh Circuit thus concluded that a leave of absence can never be a reasonable accommodation, because any employee who takes a leave of absence will necessarily not be performing their essential job functions during the absence.20 And if they are not performing their job’s essential functions, they are unqualified for the position and therefore fall outside of the ADA’s employment protections.21

Byrne demands the impossible. Rather than evaluating a plaintiff’s ability to work after having taken their requested leave, the Byrne court only considered the qualifications of plaintiffs before or during their requested leave—but a leave of absence is the very accommodation they need to work.22 The ADA does not allow for this kind of reasoning.23 Instead, courts must undertake an individualized inquiry and ask whether the plaintiff would be able to perform their job’s essential functions with the enabling effects of their requested accommodation.24 For example, a leave of absence may allow an employee to recover from a mental health crisis, and upon their return to work, continue to perform their job’s essential functions. The Byrne plaintiff, likewise, only needed to perform their job’s essential functions after the leave took place.25 The Byrne court failed to realize that “not working” may well be “a means to perform [a] job’s essential functions” because it allows the employee to return to work at a later date and at full capacity.26 Thus, the Seventh Circuit’s categorical ban on leaves of absence cannot survive a faithful reading of the ADA.

Moreover, categorical bans on reasonable accommodations conflict with Supreme Court precedent. To determine when an individual is qualified for a job, the Supreme Court requires

district court[s] . . . to conduct an individualized inquiry and make appropriate findings of fact. Such an inquiry is essential if § 504 [of the Rehabilitation Act, the ADA’s statutory predecessor] is to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of grantees as avoiding exposing others to significant health and safety risks.27

According to the EEOC’s implementing regulations, this inquiry requires courts to determine the “fundamental job duties of the employment position.”28 Courts must consider the employer’s business judgment about the requirements of the position, the work experience of past incumbents of the job, and the current work experience of incumbents in similar jobs.29 Therefore, any per se rule banning otherwise reasonable accommodations impermissibly treads over the Supreme Court’s emphasis on the “essential” nature of fact-specific judicial inquiries into disability claims.30

Several circuits have endorsed this proposition by finding that leaves of absence can be reasonable accommodations even when they are skeptical that a leave of absence will comport with the essential functions of a position.31 For example, Zenaida Garcia-Ayala’s story captures how other circuits have dealt with plaintiffs seeking leaves of absence under the ADA. Ms. Garcia-Ayala fought breast cancer for years, and frequently requested and took medical leave to attend her appointments and recover from her cancer treatments.32 Following a particularly arduous, monthslong sequence of chemotherapy and bone marrow treatment, Ms. Garcia-Ayala’s employer terminated her employment after her previous disability leave request elapsed.33 When she requested additional leave, her employer refused.34 She then sued her employer for refusing her reasonable accommodation request, but she lost at the summary judgment stage.35

The district court held that

Garcia’s request for additional leave . . . was not reasonable under the circumstances because defendants had no guarantee that the additional leave requested was for a definite period of time and nothing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect.36

The court also noted that, “of course, an essential function of any job is the ability to appear for work.”37 But the First Circuit rightly reversed the district court because it “applied per se rules [] rather than an individualized assessment of the facts.”38 Even though “[s]ome employees, by the nature of their disability, are unable to provide an absolutely assured time for their return to employment, [] that does not necessarily make a request for leave to a particular date indefinite.”39 Ms. Garcia-Ayala’s leave of absence request was a reasonable accommodation because, in light of the circumstances of her case, she would have been able to continue her work performance after her necessary medical leave.40 Thus, Ms. Garcia-Ayala’s leave of absence request could not be rejected on a categorical basis. But this does not leave her employer without recourse: The ADA mandates that any reasonable accommodation must not “impose an undue hardship on the operation of the [employer’s] business.”41

Thus, the ADA’s undue hardship exception is a valid way for employers to reject leave of absence requests. And it is possible that the Byrne court, in noting that the “[i]nability to work for a multi-month period removes a person from the class protected by the ADA,” meant that any such accommodation would necessarily cause the employer undue hardship.42 But this reading of Byrne still does not justify a ban on leaves of absence because it is barred by the procedural framework of the ADA and it conflicts with Congress’s own judgment regarding the hardship of leaves on businesses.43

First, plaintiffs bringing reasonable accommodation claims bear the initial burden of showing that they are qualified employees and that their accommodation request is facially reasonable.44 The burden then shifts to the defendant to demonstrate that the requested accommodation would cause their business undue hardship.45 To demonstrate undue hardship, the defendant “must show special (typically case-specific) circumstances”46 that make the employer take “an action requiring significant difficulty or expense,” when considered in light of the statutory factors.47 The employer must therefore show that its leave of absence policies reflect its individualized judgment about what degree of job attendance is essential to the position, and a judicial presumption that uninterrupted attendance is always essential will entirely disregard “the policies and needs of both the individual employer and employee.”48

Second, if a business argued that leaves of absence are entirely incompatible with its job requirements, this would conflict with Congress’s policy judgment that categorical bans on employee leave are inappropriate. Congress “already determined that uninterrupted attendance . . . is not a necessary job requirement and does not unduly burden employers”49 when it passed the FMLA—a statute that permits employees to take leaves of absence in response to family medical emergencies.50 And the FMLA does not itself preclude the provision of leaves of absence under the ADA.51 Thus, the FMLA represents Congress’s policy judgment that categorical bans on employee leave are inappropriate. In the words of the Sixth Circuit, it is therefore “illogical” to ignore the judgments of employees, employers, and Congress by endorsing a per se ban on leaves of absence as reasonable accommodations.52

For many employees, a leave of absence may be the only way both to address their health issues and to keep their job. The Supreme Court has recognized that ADA accommodation cases require holistic, careful consideration, and the statute’s framework provides concerned employers with the ability to object to any accommodations they believe will unduly burden their business. Thus, the Seventh Circuit’s outright ban on leaves of absence is improper under the ADA’s text, contrary to binding precedent, and unnecessary as a practical matter. At the next opportunity, the Seventh Circuit or the Supreme Court should overrule Byrne and allow district courts to resolve leave of absence claims on an individualized basis, as the ADA requires.

* Tristan Sirls is a J.D. Candidate (2026) at New York University School of Law. This Contribution is a commentary on the problem at the 2025 Robert F. Wagner National Labor and Employment Law Moot Court Competition hosted by New York Law School. One of the questions presented was whether a disabled employee is entitled to a leave of absence as a reasonable accommodation under the Americans with Disabilities Act and, if so, what length of time for such a leave of absence is reasonable and consistent with the statute. This Contribution distills one side of the argument, and the views expressed herein do not necessarily represent the author’s views.

1. 42 U.S.C. §§ 12101–12213.

2. Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (internal quotations omitted).

3. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002).

4. 42 U.S.C. § 12112(a), (b)(5)(A).

5. Sch. Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 287 (1987); see, e.g., Wernick v. Fed. Rsrv. Bank, 91 F.3d 379, 385 (2d Cir. 1996) (finding that an ADA reasonable accommodation inquiry is “fact-specific” and must be evaluated on “a case-by-case basis”).

6. See Byrne v. Avon Prods., 328 F.3d 379, 380–81 (7th Cir. 2003).

7. See Arline, 480 U.S. at 287.

8. 29 U.S.C. §§ 2601–54.

9. 42 U.S.C. § 12111(9)(B).

10. Id.

11. Byrne, 328 F.3d at 380–81.

12. Id.

13. 42 U.S.C. § 12111(8).

14. Id.

15. 29 C.F.R. § 1630.2(o).

16. “Enable” means “to make possible, practical, or easy,” or “to provide with the means or opportunity.” Enable, Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/enable (last visited Apr. 20, 2026).

17. Id.

18. § 12111(8).

19. Byrne, 328 F.3d at 380–81.

20. Id.

21. Id.

22. Id.

23. 42 U.S.C. § 12111(8).

24. Id.

25. See § 12111(8).

26. Id.; Byrne, 328 F.3d at 381.

27. Arline, 480 U.S. at 287; see also Wernick, 91 F.3d at 385 (finding that an ADA reasonable accommodation inquiry is “fact-specific” and must be evaluated on “a case-by-case basis”).

28. 29 C.F.R. § 1630.2(n).

29. Mulloy v. Acushnet Co., 460 F.3d 141, 147 (1st Cir. 2006) (citing 29 C.F.R. § 1630.2(n)(3)).

30. Arline, 480 U.S. at 287.

31. See Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000) (finding an employee’s leave of absence request accommodation was compatible with the performance of “the essential functions of her job”); see also Cehrs v. Ne. Ohio Alzheimer’s Rsch. Ctr., 155 F.3d 775, 782–83 (6th Cir. 1998) (finding the same); Norris v. Allied-Sysco Food Servs., Inc., 948 F. Supp. 1418, 1439 (N.D. Cal. 1996), aff’d per curiam, 191 F.3d 1043 (9th Cir. 1999) (finding the same); Hwang v. Kan. State Univ., 753 F.3d 1159, 1162 (10th Cir. 2014) (Gorsuch, J.) (determining that a leave of absence may be a reasonable accommodation, and one extending past 6 months is “almost always” unreasonable, not per se unreasonable).

32. Garcia-Ayala, 212 F.3d at 641–42 (citation modified).

33. Id.

34. Id.

35. Id. at 647.

36. Id.

37. Id.

38. Garcia-Ayala, 212 F.3d at 647.

39. Id. at 647–48.

40. Id.

41. 42 U.S.C. § 12112(b)(5)(A).

42. Byrne, 328 F.3d at 381.

43. Cehrs, 155 F.3d at 783.

44. See, e.g., Reed v. LePage Bakeries, Inc., 244 F.3d 254, 258 (1st Cir. 2001) (finding that the plaintiff needs to show both that the proposed accommodation would allow performance of the job and that it is feasible for the employer to adopt the accommodation).

45. 42 U.S.C. § 12112(b)(5)(A) (“[U]nless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” (emphasis added)).

46. Barnett, 535 U.S. at 402.

47. 42 U.S.C. § 12111(10)(A).

48. Cehrs, 155 F.3d at 782–83 (holding that a per se rule against leave ignores the burden shifting framework established by the statute, which requires the business to show an undue burden).

49. Id. (citing 29 U.S.C. § 2601-2654 (outlining the details of the FMLA)).

50. Id.

51. The ADA and FMLA are different statutes with different purposes and benefits, and “many employees eligible for FMLA leave will not be entitled to leave as a reasonable accommodation under the ADA.” U.S. Equal Emp. Opportunity Comm’n, EEOC-CVG-2003-1, Enforcement Guidance On Reasonable Accommodation and Undue Hardship Under the ADA (2002), https://www.eeoc.gov/policy/docs/accommodation.html; see 29 C.F.R. § 825.702(a) (noting that “[n]othing in FMLA modifies or affects any Federal . . . law prohibiting discrimination on the basis of . . . disability,” which includes “the [ADA] or the regulations issued under that act”). Similarly, a “serious health condition” under the FMLA is not necessarily the equivalent of a disability under the ADA. Waggel v. George Wash. Univ., 957 F.3d 1364, 1373 (D.C. Cir. 2020). Further, “the structure of the statutes are fundamentally different . . . . [And] the Department of Labor’s implementing regulations emphasize claims under each statute must be analyzed separately while acknowledging accommodations may sometimes overlap.” Id. Therefore, the FMLA’s applicability or inapplicability should have no bearing on a determination of whether a leave of absence constitutes a reasonable accommodation—or renders an employee unqualified—under the ADA. Id.

52. Cehrs, 155 F.3d at 783 (finding that the Congressional allowance of leave under the FMLA indicates leave should exist under the ADA or else the scheme would be inconsistent).