EnoughFACTS:   Plaintiff Mary Alice Silva worked on the SWAT team of the City’s Police Department. On June 28, 2011, she broke her leg while jogging and underwent surgery the next day. Ms. Silva took a FMLA leave which expired on September 21, 2011.

Prior to the expiration of her FMLA leave, Ms. Silva requested to be placed in a light duty or desk duty job; alternatively she asked for an extension of her FMLA leave “or any other available medical or other available leave” because she did not expect to be able to return to work “for at least a month” after her FMLA leave expired. Ms. Silva also provided a copy of her doctor’s assessment, stating she would require “at least one to two more months of physical therapy,” and further stating her doctor was “willing to sign for her to continue to be off work for at least another three months if necessary.”

Instead of engaging in the interactive process or providing Ms. Silva with an accommodation, the Police Department promptly terminated her on September 28, 2011, citing Ms. Silva’s failure to return to work and further stating there were no available positions that met Ms. Silva’s physical limitations. Ms. Silva sued under the ADA, e.g., alleging the Police Department failed to engage in the interactive process and failed to provide her with a reasonable accommodation.

The District Court granted summary judgment, dismissing Ms. Silva’s ADA claim; the Fifth Circuit affirmed.

Legal Analysis—Important Points:

(1) The Fifth Circuit held Ms. Silva failed to produce any evidence the Police Department had a vacant, available light or desk duty position available at the time of her request. This fact is fatal to her claims; the Court reiterated the Police Department was not required to create a light duty position for Ms. Silva as an accommodation.

(2) The Court held the Police Department was relieved from its duty to engage in the interactive process under this scenario. The Court stated: “even if a genuine issue of material fact exists as to whether the city participated in the interactive process in good faith, its dereliction cannot be said to have led to a failure to reasonably accommodate Silva because there is no evidence that a reasonable accommodation was feasible.”

(3) The Court reiterated an employer’s failure to engage in the interactive process is not a per se violation of the ADA. Instead, an employer violates the ADA only when its unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee. The Police Department’s refusal to engage in the interactive process did not lead to a failure to accommodate when there were no available accommodations.

(4) The Court dismissed Ms. Silva’s claim regarding her request for extension of leave as a reasonable accommodation. The Fifth Circuit reasoned “Silva could not (or simply did not) provide an estimate of when she could resume her former job duties except to say that it would be longer than one month in the most optimistic scenario.” The Court held Ms. Silva’s request for leave amounted to a request for indefinite leave.

(5) Finally, the Court also noted Ms. Silva’s request that the Police Department hold her job open for her until she was able to return, which turned out to be five months after her FMLA leave expired, “cannot be squared with the statute’s entitlement to a ‘reasonable’ accommodation.’”

TakeAwayThe Takeaway: A prudent employer would apply this case cautiously. We would never advocate skipping the interactive process entirely, even when the employee’s requested accommodation seems to be impossible.

However, what is clear is that an employer is not required to accommodate a request for indefinite leave; an employee’s failure to provide an estimated return to work date can support denial of the requested extended leave. Furthermore, it appears that 5 months beyond FMLA leave (3 months), for a total of 8 months’ leave may be the Court’s outermost limit on a reasonable leave from the workplace under the ADA.

The case is Silva v. City of Hidalgo, Texas, ___ Fed. Appx. ____, 2014 WL 351168, at *1 (5th Cir. July 17, 2014).