212 F.3d 638 (1st Cir. 2000)
ZENAIDA GARC A-AYALA, Plaintiff, Appellant,v.LEDERLE PARENTERALS, INC., ET AL., Defendants, Appellees.
No. 98-2291
United States Court of Appeals For the First Circuit
Heard November 2, 1999Decided May 18, 2000

[Copyrighted Material Omitted][Copyrighted Material Omitted]
Carlos M. Vergne Vargas, with whom Limeres, Vergne & Duran was  on brief, for appellant.
Graciela J. Belaval, with whom Martinez, Odell & Calabria was  on brief, for appellees.
Barbara L. Sloan, with whom C. Gregory Stewart, General  Counsel, Philip B. Sklover, Associate General Counsel, Vincent J.  Blackwood, Assistant General Counsel, and Jodi B. Danis, Attorney, were on brief, for amicus curiae Equal Employment Opportunity  Commission.
Before: Lynch, Circuit Judge,  Campbell, Senior Circuit Judge,  and O'Toole, District Judge.*
LYNCH, Circuit Judge.


1
Zenaida Garca-Ayala appeals an  order granting summary judgment for her former employer, Lederle  Parenterals, Inc., in a suit that alleges wrongful termination and  demands injunctive relief and compensatory and punitive damages  under the Americans with Disabilities Act.  See Garca-Ayala v. Lederle Parentals, Inc., 20 F. Supp. 2d 312, 313 (D.P.R. 1998). The district court held that Garca was not a "qualified  individual" under the Act because the accommodation she requested  from her employer was not "reasonable."  See id. at 315.  We  reverse and direct entry of judgment for the plaintiff.

I.

2
The parties stipulated to the following facts.  Garca  worked for Lederle Parenterals, Inc. as a secretary from October  1983 to June 13, 1996, when her employment was terminated.  Most  recently, she was the only clerical employee in the company's  Validation Department.


3
Lederle's disability benefits program provides that an  employee may receive up to fourteen continuous weeks of salary  continuation and then short-term disability benefits (STD) at sixty  percent of full salary.  Under the plan, an employee could be  absent from work for a twenty-six week period, work another two  weeks, and then be out for an additional twenty-six weeks for the  same disability.  During her employment at Lederle, Garca used the  salary continuation and short-term disability benefits on fourteen  separate occasions, in addition to her sick leave.  Lederle had a  policy of reserving a job for one year when employees had been out  on STD.  It applied that policy and terminated Garca's employment  after her one-year reservation period ended.


4
Since 1986, Garca has been stricken with breast cancer  and has undergone several rounds of surgery and chemotherapy.  From  March 15, 1987 to September 16, 1987, she was absent from work for  184 days as a result of a modified radical mastectomy.  During this  period, she received salary continuation benefits for fourteen  weeks, and then short-term disability for the remainder.  From  September 1987 until 1993 she was back at work.  Six years later,  in August 1993, a biopsy revealed adenocarcinoma of the breast,  infiltrating duct type, persistent, and, as a result, Garca was  absent for 115 days.  She then returned to work.


5
In December 1994, Garca was diagnosed with  adenocarcinoma of the breast, metastatic.  On March 17, 1995, she  underwent surgery to remove a nodule in her neck.  Before that  surgery, Garca used up her sick leave and was absent from work for  a total of eighty-eight and a half hours.  Following surgery, she  received short-term disability benefits for thirty-four consecutive  days.  In May, she took an additional forty-six hours of leave. From June 9 through 25, 1995, she received salary continuation  benefits in relation to the medical condition.


6
Sometime after her surgery, Garca saw a television  report on a bone marrow transplant procedure that offered a  treatment for her cancer.  She was interviewed by doctors in June  1995 and Garca informed Lederle in July that she needed to undergo  this procedure, which was only available at a Chicago hospital. From August 7 through 20, 1995, she was absent due to chemotherapy  (for which she took nineteen hours sick leave and short-term  disability).  From September 13 through 27, 1995, she was again  absent due to treatment (eight hours sick leave/fifteen days of  short-term disability).  In October 1995, Garca took eleven and  one-half hours of sick leave.


7
Garca was hospitalized for the bone marrow treatment on  November 14, 1995.  She received STD payments until March 19, 1996. As of that date, she started receiving long-term disability (LTD). Lederle did not consider her to be an employee once she was on LTD. On April 9, 1996, doctors certified to Lederle that Garca would be  able to return to work on July 30, 1996.


8
On June 10, 1996, Lederle's Human Resources Director,  Aida Margarita Rodrguez, called Garca at home and asked her to  come to work to meet with her.  Garca complied and Rodrguez  notified her that the company deemed her disability to have begun  in March 1995, that her one-year period for job reservation had  elapsed in March 1996, and that her employment was terminated. Garca asked that her job be reserved until July 30th, when her  doctors expected her to return to work, but to no avail.  On June  13th, Lederle sent Garca a letter confirming her conversation with  Rodrguez and denying her request for additional leave.


9
As it turned out, although Garca had requested an  accommodation until July 30th, it was on August 22, 1996 that  Garca's doctors released her for work, though they did not notify  Lederle of this and Garca did not re-apply for employment.


10
Garca's essential job functions did not go unfilled.  At  least three different temporary employees provided by agencies  performed Garca's tasks at Lederle during her medical leave and  after her dismissal.  Indeed, from June 13, 1996, to January 31,  1997, a period of over seven months from Garca's dismissal, the  company chose to use temporary employees.  The company says her  position was never filled by a permanent employee.  There was no  evidence that the temporary employees cost Lederle any more than  Garca would have or that their performance was in any way  unsatisfactory.

II.

11
On May 16, 1997, Garca brought suit against Lederle, its  parent companies, American Home Products Corp. and American Cynamid  Co., and others for alleged violations of the ADA and Puerto Rico  Act No. 44 of July 2, 1985, P.R. Laws Ann. tit. 1, §§ 501 et seq.,  as a result of the termination of her employment following surgery  for breast cancer.  She seeks back pay, reinstatement (or "front  pay"), injunctive relief from future discrimination, compensatory  and punitive damages, and attorney's fees.  On March 30, 1998, the  parties submitted a stipulation of material facts together with a  Motion Submitting Stipulation of Uncontested Material Facts and  Legal Controversies.  On September 28, 1998, the court granted  Lederle's cross-motion for summary judgment, denied Garca's motion  for summary judgment, declined to exercise its supplemental  jurisdiction over Garca's claim under Act 44, and dismissed the  case.  See Garca-Ayala, 20 F. Supp. 2d at 313.1  Garca appeals.

III.

12
There is some disagreement as to what happened at the  trial court and, resultantly, as to the standard of review to be  applied by this court on an appeal from summary judgment entered  after cross-motions.  Citing Reich v. John Alden Life Insurance  Co., 126 F.3d 1, 6 (1st Cir. 1997), and United Paperworkers  International Union, Local 14 v. International Paper Co., 64 F.3d  28, 31 (1st Cir. 1995), both Lederle and Garca have argued that  clear-error review should apply to the factual inferences made by  the district court since the decision below was based on stipulated  facts and made on cross-motions for summary judgment.2 But seeWightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st  Cir. 1996) ("Cross motions for summary judgment neither alter the  basic Rule 56 standard, nor warrant the grant of summary judgment per se.").


13
The EEOC, appearing as amicus curiae urges de novo  review, the customary standard for appellate review of summary  judgment.  The district court opinion in this jury-claimed case  does not discuss whether there was a waiver of jury trial rights or  a stipulation under Federal Rule of Civil Procedure 39(a)(1),3 or  whether it was resolving the matter on a jury-waived and a "case  stated" basis or on conventional summary judgment; the order  entered was for summary judgment (although the opinion once used  the phrase "The Court finds").  Out of the confusion, we think it  wise to reiterate a few basics.


14
For the purposes of standard of appellate review in these  circumstances, there is usually a distinction between non-jury and  jury cases. This circuit, in United Paperworkers, held that:


15
[i]n a nonjury case, when the basic dispute between the  parties concerns only the factual inferences that one  might draw from the more basic facts to which the parties  have agreed, and where neither party has sought to  introduce additional factual evidence or asked to present  witnesses, the parties are, ineffect, submitting their  dispute to the court as a case stated.


16
Id. (internal quotation marks omitted) (emphasis added).  We have  reached the same result in other non-jury cases.  See Reich, 126  F.3d at 6; EEOC v. Steamship Clerks Union 1066, 48 F.3d 594, 603  (1st Cir. 1995); Continental Grain Co. v. Puerto Rico Maritime  Shipping Auth., 972 F.2d 426, 429-30 & n.7 (1st Cir. 1992); Boston  Five Cents Savings Bank v. Secretary of the Dep't of Housing &  Urban Dev., 768 F.2d 5, 11-12 (1st Cir. 1985); Federacion de  Empleados del Tribunal Gen. de Justicia v. Torres, 747 F.2d 35, 36  (1st Cir. 1984); cf. Posadas de Puerto Rico, Inc. v. Radin, 856  F.2d 399, 400-01 (1st Cir. 1988) (same where only one side moved  for summary judgment).  In such cases, "[t]he standard for  appellate review . . . shifts from de novo review to clear-error  review; that is, the district court's factual inferences should be  set aside only if they are clearly erroneous."  United  Paperworkers, 64 F.3d at 31.


17
This rule evolved from -- and makes sense in -- bench  trial cases.  See 10A Charles Alan Wright, Arthur R. Miller, & Mary  Kay Kane, Federal Practice and Procedure § 2720, at 338-39 (1998)  (referring to this practice in non-jury cases).  Instead of  expending time and money on a trial, the parties may decide that  the pre-trial record establishes all the necessary grounds upon  which a judge may enter a final ruling on one or all of the issues  in dispute.  See, e.g., Allen v. United Mine Workers 1979 Benefit  Plan & Trust, 726 F.2d 352, 353 (7th Cir. 1984).  They are, in  essence, skipping trial and proceeding directly to judgment,  submitting the case to the judge as stated.4


18
When determining whether this was the path taken by the  parties in non-jury cases, this circuit and others inquire into the  intentions of the parties and the district court judge, as  evidenced by the record on appeal.5  See United Paperworkers, 64  F.3d at 31-32 & n.2; see also, e.g., Sherwood v. Washington Post,  871 F.2d 1144, 1147 n.4 (D.C. Cir. 1989); Wolfe v. United States,  798 F.2d 1241, 1243 n.2 (9th Cir.), amended on other grounds, 806  F.2d 1410, 1411 (9th Cir. 1986); Donovan v. Dialamerica Marketing,  Inc., 757 F.2d 1376, 1381-82 (3d Cir. 1985); EEOC v. Maricopa  County Community College Dist., 736 F.2d 510, 512-13 (9th Cir.  1984); Satellite Television & Associated Resources, Inc. v. Continental Cablevision of Va., Inc., 714 F.2d 351, 354 (4th Cir.  1983); Wilson v. Block, 708 F.2d 735, 745 n.7 (D.C. Cir. 1983); Crow v. Gullet, 706 F.2d 856, 858 & n.3 (8th Cir. 1983); Lac Courte  Oreilles Band v. Voigt, 700 F.2d 341, 349 (7th Cir. 1983); Toney v. Bergland, 645 F.2d 1063, 1066 (D.C. Cir. 1981) (per curiam); Nielsen v. Western Elec. Co., 603 F.2d 741, 743 (8th Cir. 1979); Vetter v. Frosch, 599 F.2d 630, 632-33 (5th Cir. 1979); U.S.  Manganese Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 576  F.2d 153, 156 (8th Cir. 1978); United States v. Fred A. Arnold,  Inc., 573 F.2d 605, 606-07 (9th Cir. 1978) (per curiam); United  States v. Articles of Device Consisting of Three Devices . . .  "Diapulse", 527 F.2d 1008, 1011 (6th Cir. 1976); Starsky v. Williams, 512 F.2d 109, 112 (9th Cir. 1975); Tripp v. May, 189 F.2d  198, 199-200 (7th Cir. 1951).  See generally Edward J. Brunet, Martin H. Redish, & Michael A. Reiter, Summary Judgment: Federal  Law and Practice § 8.01, at 232-34 (1994); William W. Schwarzer,  Alan Hirsch, & David J. Barrans, The Analysis and Decision of  Summary Judgment Motions 40-41 (1991).


19
Jury trial cases are treated differently.  This court,  like nearly all other courts, has refused to make the "case stated"  inquiry when one of the parties has requested trial by jury. See United Paperworkers, 64 F.3d at 31 (specifying that the case stated  inquiry is limited to non-jury cases); see also Winter v. Minnesota  Mutual Life Ins. Co., 199 F.3d 399, 405-08 (7th Cir. 1999) (same); Colan v. Mesa Petroleum Co., 951 F.2d 1512, 1517-18 (9th Cir. 1991)  (same); Satellite Television, 714 F.2d at 354 (same); Tripp, 189  F.2d at 200 (same); cf. Transworld Airlines, Inc. v. American  Coupon Exch., Inc., 913 F.2d 676, 684-85 (9th Cir. 1990) (similar  where only one side moved for summary judgment); Nunez v. Superior  Oil Co., 572 F.2d 1119, 1124 (5th Cir. 1978) (same).6  Thus,  unsurprisingly, we have reviewed judgments based on cross-motions  for summary judgment in jury trial cases de novo.  See, e.g., Den  norske Bank AS v. First Nat'l Bank, 75 F.3d 49, 53 (1st Cir. 1996).


20
The distinction between bench and jury trials is  appropriate since the right to a jury trial is constitutionally  protected and casual waivers are not to be presumed.  See U.S.  Const. amend. VII; Fed. R. Civ. P. 38(d); Winter, 199 F.3d at 407  n.11; Indiana Lumbermens Mutual Ins. Co. v. Timberland Pallet &  Lumber Co., 195 F.3d 368, 374 (8th Cir. 1999); Jennings v. McCormick, 154 F.3d 542, 545 (5th Cir. 1998); LaMarca v. Turner,  995 F.2d 1526, 1544 (11th Cir. 1993); Tray-Wrap, Inc. v. Six L's  Packing Co., 984 F.2d 65, 67-68 (2d Cir. 1993); Mondor v. U.S.  Dist. Ct. for the Cent. Dist. of Cal., 910 F.2d 585, 587 (9th Cir.  1990).


21
But application of these principles to this case is not  straightforward, and we decide the issue of standard of review here  under two different doctrines: Federal Rule of Civil Procedure  39(a)(1) and waiver.  We determine that Garca agreed, pursuant to  Rule 39(a)(1), that the issues of liability presented for the  purposes of the summary judgment cross-motions could be determined  by the court, in light of the stipulation filed that "the parties  . . . submit the material facts in this matter to the Court for  adjudication on the merits on the legal controversies in this  matter."  Further, plaintiff has urged upon us a clear error  standard of review.  Although at oral argument plaintiff's counsel  said she did not intend to waive her jury trial right, she did not  brief this issue on appeal and so she is bound.  See Piazza v. Aponte Roque, 909 F.2d 35, 37 (1st Cir. 1990); Fed. R. App. P.  28(a).  In light of the wording of the stipulation, together with  the fact that Garca, on appeal, has said that review is for clear  error (and not de novo), we treat this, for present purposes, as an  appeal from a determination after a Rule 39(a)(1) consent.  Consequently, we proceed as if the parties submitted the case to  the district court judge as stated, and review of the determination  of the district court is for clear error.

IV.

22
Garca claims that Lederle violated the ADA when the  company fired her after she requested additional leave supplemental  to her sick and disability leave.  Section 102(a) of the ADA  states: "No covered entity shall discriminate against a qualified  individual with a disability because of the disability of such  individual in regard to . . . discharge of employees . . . ."  42  U.S.C. § 12112(a).  Lederle's primary defense at summary judgment  was that Garca was not a qualified individual because the  accommodation she sought was not reasonable.7  Lederle offered no  evidence or argument that the requested accommodation was an undue  hardship.  In fact, Lederle's appellate argument is inconsistent  with its factual stipulation that Garca's position was terminated  because her one-year period of leave had expired.  That was the  reason the company gave in its letter of termination to Garca.8 The company's apparent position that the ADA can never impose an  obligation on a company to grant an accommodation beyond the leave  allowed under the company's own leave policy is flatly wrong under  our precedent.  See, e.g., Ralph v. Lucent Techs., Inc., 135 F.3d  166, 171-72 (1st Cir. 1998).  The district court order ignored the  position stated in the record by the company and went instead to  the issue of the reasonableness of the accommodation.


23
To establish an ADA claim, a plaintiff must prove by a  preponderance of the evidence: first, "that she was disabled within  the meaning of the Act; second, . . . that with or without  reasonable accommodation she was a qualified individual able to  perform the essential functions of the job; and third, . . . that  the employer discharged her because of her disability."  Criado v. IBM Corp., 145 F.3d 437, 441 (1st Cir. 1998); accord Feliciano v. Rhode Island, 160 F.3d 780, 784 (1st Cir. 1998); Soto-Ocasio v. Federal Express Corp., 150 F.3d 14, 18 (1st Cir. 1998).9  The  parties focus on the second of these three elements.  Both the EEOC  and Garca argue that the district court erroneously shifted the  burden as to this factor.


24
In order to be a "qualified individual" under the Act,  the burden is on the employee10 to show: first, that she  "possess[es] 'the requisite skill, experience, education and other  job-related requirements' for the position, and second, [that she  is] able to perform the essential functions of the position with or  without reasonable accommodation."  Criado, 145 F.3d at 443  (quoting 29 C.F.R. § 1630.2(m)); see also 42 U.S.C. § 12111(8); Cleveland v. Policy Mgmt. Sys. Corp., 119 S. Ct. 1597, 1603 (1999). There is no question here as to the first of these two  prerequisites.  The court correctly stated that "it is [the]  plaintiff's burden to prove that, at the time she sought to resume  her job, she had the ability to perform the essential functions of  secretary to the Validation Department."  Garca-Ayala, 20 F. Supp.  2d at 314.  But the statute also places the burden on the defendant  to show that an accommodation would be an undue hardship.  See 42  U.S.C. § 12112(b)(5)(A) (stating that the term "discriminate"  includes "not making reasonable accommodations to the known  physical or mental limitations of an otherwise qualified individual  with a disability who is an . . . employee, unless such covered  entity can demonstrate that the accommodation would impose an undue  hardship on the operation of the business of such covered  identity").


25
The court also went on to say, "[o]f course, an essential  function of any job is the ability to appear for work."  Id. (citations omitted).  The court then held that Garca's request for  additional leave (until July 30, 1996) "was not reasonable under  the circumstances" because "defendants had no guarantee that the  additional leave requested was for a definite period of time and  '[n]othing in the text of the reasonable accommodation provision  requires an employer to wait an indefinite period for an  accommodation to achieve its intended effect.'"  Id. at 315  (quoting Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995)).  The  court also found that, although "some situations might mandate  unpaid leave of absence as an appropriate accommodation," a five-month job reservation, "in excess of established policy[,] place[s]  the employer in an untenable business position."  Garca-Ayala, 20  F. Supp. 2d at 315.  The district court, in our view, committed two  types of errors.

A. Individualized Assessment

26
It appears from the court's statements that it was  applying per se rules, and not giving the type of individual  assessment of the facts that the Act and the case law requires. The Supreme Court has deemed "essential" individualized attention  to disability claims.  See School Bd. v. Arline, 480 U.S. 273, 287  (1987).  As we said in Criado, "[w]hether [a] leave request is  reasonable turns on the facts of the case."  Criado, 145 F.3d at  443; see also Kennedy v. Dresser Rand Co., 193 F.3d 120, 122 (2d  Cir. 1999).  It  is simply not the case, under our precedent that  an employee's request for an extended medical leave will  necessarily mean, as the district court suggested, that the  employee is unable to perform the essential functions of her job.


27
First, the court did not focus on the employer's  statement that the reason that it terminated Garca was because her  medical leave period, under company policy, had expired.  The court  essentially found that a requested accommodation of an extension of  a leave on top of a medical leave of fifteen months was per se  unreasonable.  But reasonable accommodations may include "job  restructuring, part-time or modified work schedules, . . . and  other similar accommodations for individuals with disabilities." 42 U.S.C. § 12111(9)(B).  This court and others have held that a  medical leave of absence -- Garca's proposed accommodation -- is  a reasonable accommodation under the Act in some circumstances. See Criado, 145 F.3d at 443-44; Nunes v. Wal-Mart Stores, Inc., 164  F.3d 1243, 1247 (9th Cir. 1999); Cehrs, 155 F.3d at 782 (citing Criado); Haschmann v. Time Warner Entertainment Co., 151 F.3d 591,  601 (7th Cir. 1998); Rascon v. U S West Communications, Inc., 143  F.3d 1324, 1333-34 (10th Cir. 1998).


28
Our concern that the court applied per se rules -- rather  than an individualized assessment of the facts -- is heightened by  other statements.  Here, the leave that Garca requested on June 10  was for less than two months.  The district court viewed the  request as being for five months, since Rodriguez had advised  Garca, albeit in June, that a one-year period for job reservation  had lapsed in March.  Even if the request were for an additional  five months of unpaid leave, we see no reason to adopt a rule on  these facts that the additional medical leave sought would be per  se an unreasonable accommodation.  Well after her termination, as well as during her medical leave, Lederle filled Garca's  secretarial position with individuals hired from temporary  agencies.  Lederle had no business need apparent from this record  to replace Garca with an in-house hire, and hence would not have  suffered had it waited for several more months until Garca's  return.  In Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 171-72 (1st Cir. 1998), the court held that a four-week additional  accommodation, beyond a fifty-two week leave period for mental  breakdown, was reasonable for purpose of a preliminary injunction. The district court's statement that the employer was left in an  "untenable business position" also reinforces the sense of the use  of per se rules and the lack of focus on the facts of this case,  given that the employer put on no evidence of undue hardship.11


29
Similarly, the court viewed Garca's requested  accommodation -- additional leave time with a specific date for  return -- as a request that her job be held open indefinitely. Lederle had argued that since Garca's doctor could not give  absolute assurances that she would be fit to return to work on July  30th, the request was per se for an indefinite leave and so was  unreasonable.  Garca specified, however, when she would return,  and her doctor released her for return several weeks thereafter.  There is no evidence that either July 30th or the August 22nd date  of medical release, would have imposed any specific hardship on  Lederle.  Some employees, by the nature of their disability, are  unable to provide an absolutely assured time for their return to  employment, but that does not necessarily make a request for leave  to a particular date indefinite.  Each case must be scrutinized on  its own facts.  An unvarying requirement for definiteness again  departs from the need for individual factual evaluation.12  SeeHaschmann, 151 F.3d at 599-600; Criado, 145 F.3d at 443-44; Rascon,  143 F.3d at 1333-34; Kimbro v. Atlantic Richfield Co., 889 F.2d  869, 878-79 (9th Cir. 1989) (interpreting analogous state statute). Of course, that a leave is not indefinite does not make it  reasonable.  Even short leaves may inflict undue hardship in a  given employment situation, and there may be requested leaves so  lengthy or open-ended as to be an unreasonable accommodation in any  situation.


30
B. Reasonable Accommodation and Undue Hardship


31
The parties requested that the court determine the issue  of liability on the basis of the facts before it.  While the burden  of showing reasonable accommodation is on the plaintiff,13 this is  a case in which the employer did not contest the reasonableness of  the accommodation except to embrace a per se rule that any leave  beyond its one-year reservation period was too long.  The employer,  Lederle, has the burden of proof on the issue of undue hardship,  and it did not put on any evidence of undue hardship from Garca's  proposed accommodation.  See Ward v. Massachusetts Health Research  Institute, Inc., 209 F.3d 29 (1st Cir. 2000) (reversing summary judgment in an ADA case where the employer  had produced no evidence of undue hardship).


32
While on different facts, a request for an extended leave  could indeed be too long to be a reasonable accommodation and no  reasonable factfinder could conclude otherwise, that is not this  case for a number of reasons.  It does not appear that Garca  expected to be paid for the additional weeks away from work beyond  those allowed under the employer's disability benefits program and  while her job functions were being performed by temporary help. There is no evidence that the temporary employees were paid more  than Garca or were less effective at her job than she.  Indeed,  Lederle's continued use of temporary employees and Lederle's  failure to replace Garca indicates the contrary.  There was,  therefore, no financial burden on the employer from paying an  employee who was not performing.  It is true that an employer  usually needs to have the functions of a job filled, and the fact  that essential functions have gone unfilled for a lengthy period  could well warrant judgment for an employer.  But here, the  essential functions of the job were filled, to all indications  satisfactorily, by temporary employees.  The use of temporary  employees is not, of course, always a satisfactory or even a  possible solution.  But here, there is no evidence that Lederle was  under business pressure to fill the slot with another permanent  employee (indeed, it never did).  In other situations, temporary  replacements may be unavailable or unsuited to the position; here,  the available evidence is all to the contrary.  In addition, as  said, there is no evidence that the cost of the temporary help was  greater than the cost of a permanent employee; one might suppose it  was less.  Thus, the requested accommodation of a few additional  months of unsalaried leave, with the job functions being  satisfactorily performed in the meantime, is reasonable.


33
The employer presented the court with no evidence of any  hardship, much less undue hardship.  On this record, we see no  basis for the court to do other than enter judgment for Garca. Under the EEOC guidelines, 29 C.F.R. § 1630.2(p), factors to be  considered as to undue hardship include the cost of the  accommodation, the effect on expenses and resources, the impact of  the accommodation on the operation of the facility (including on  other employees' ability to do their jobs) and the impact on the  facility's ability to conduct business.  On this record there is no  discernible negative impact on any of these factors; indeed, the  record shows hardly any discernable impact at all on the employer  from the requested accommodation.  As it was the employer's burden  to produce evidence of hardship, we hold that it must bear the  responsibility for the absence of such evidence here.


34
We stress that the Act does not require employers to  retain disabled employees who cannot perform the essential  functions of their jobs without reasonable accommodation.  Applying  this rule to the prolonged disability leave situation is tricky,  however.  An absent employee obviously cannot himself or herself  perform; still, the employer may in some instances, such as here,  be able to get temporary help or find some other alternative that  will enable it to proceed satisfactorily with its business  uninterrupted while a disabled employee is recovering.  In  situations like that, retaining the ailing employee's slot while  granting unsalaried leave may be a reasonable accommodation  required by the ADA.  If, however, allowing the sick employee to  retain his or her job places the employer in a hardship situation  where it cannot secure in some reasonable alternative way the  services for which it hired the ailing employee, and yet is blocked  from effecting a rehire, the ADA does not require the retention of  the disabled person.  Hence, where it is unrealistic to expect to  obtain someone to perform those essential functions temporarily  until the sick employee returns, the employer may be entitled to  discharge the ill employee and hire someone else.  An exception to  this might be if the requested disability leave was so brief that  no undue business harm could reasonably be expected to occur from  not filling the vacancy.  We add that our analysis, while  applicable to these facts, may not be applicable in other cases.  Undue hardships are not limited to financial impacts; the term  includes accommodations that are unduly extensive, substantially  disruptive, or that would fundamentally alter the nature or  operation of the business.  See 29 C.F.R. pt. 1630, App.


35
Other factors to be considered as to whether requests for  leaves of absence unreasonable include, for example: where the  employee gave no indication as to when she might be able to return  to work, and, instead, she simply demanded that her job be held  open indefinitely, see, e.g., Taylor v. Pepsi-Cola Co., 196 F.3d  1106, 1110 (10th Cir. 1999); Watkins v. J & S Oil Co., 164 F.3d 55,  62 (1st Cir. 1998) (citing Myers); Corder v. Lucent Techs. Inc.,  162 F.3d 924, 928 (7th Cir. 1998); Duckett v. Dunlop Tire Corp.,  120 F.3d 1222, 1226 (11th Cir. 1997) (per curiam); Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 759-60 (5th Cir.  1996); where the employee's absences from work were "erratic" and  "unexplained," see, e.g., Waggoner v. Olin Corp., 169 F.3d 481,  484-85 (7th Cir. 1999); where, upon the employee's return to work,  she would be unqualified, see, e.g., Tyndall v. National Educ.  Ctrs., Inc., 31 F.3d 209, 213-14 (4th Cir. 1994); and where the  employee was hired to complete a specific task, see, e.g., Stubbs v. Marc Ctr., 950 F. Supp. 889, 893-95 (C.D. Ill. 1997).  Cf.  generally Micari v. Trans World Airlines, Inc., 43 F. Supp. 2d 275,  281-82 (E.D.N.Y. 1999) (collecting cases); Powers v. Polygram  Holding, Inc., 40 F. Supp. 2d 195, 199-201 (S.D.N.Y. 1999) (same). In addition, this court has inquired into whether the company had  made earlier policy decisions that it was more profitable to permit  an employee additional leave than to hire and train a new employee. See Criado, 145 F.3d at 444.


36
These are difficult, fact intensive, case-by-case  analyses, ill-served by per se rules or stereotypes.  We emphasize  that the stipulated record here contains no evidence whatever of any form of hardship to Lederle as a result of the requested  accommodation.  Were this not so, we would feel obligated to return  the case to a factfinder for further evaluation.  But given the  employer's failure to meet, even minimally, its burden of proof on  the issue of hardship, we award judgment to Garca as a matter of  law.

V.

37
We reverse the entry of judgment in favor of Lederle,  direct entry of judgment on liability under the ADA for Garca, and remand the case for further proceedings in accordance with this  opinion.


38
So ordered.  Costs to appellant.



Notes:


*
 Of the District of Massachusetts, sitting by designation.


1
 The correct name of the lead defendant in this case is  "Lederle Parenterals, Inc." and not "Lederle Parentals, Inc.," as  the district court opinion is captioned.


2
 The parties made a joint "Motion Submitting Stipulation  of Uncontested Material Facts and Legal Controversies," and claimed  "[t]here being no genuine controversy as to the material facts in  this matter, the parties stipulate the same, and submit the  material facts to the Court for adjudication on the merits of the  legal controversies in this matter."


3
 At oral argument on appeal, counsel for Garca disavowed  any intent not to have a jury trial.  But that may have been a  statement as to trial on damages, once the district court ruled on  liability, and thus consistent with the position in counsel's brief  on the standard of review.


4
 In these non-jury cases, problems arise for appellate  courts when the record is unclear that this is what the parties and  the trial judge meant to do.  Consequently, when a claim is made on  appeal that the case below was decided as a "case stated,"  appellate courts invariably look quite carefully at the proceedings  in the trial court to make sure that the parties had "willingly  foregone their right to a full trial."  Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 143 (2d Cir. 1998).


5
 Some circuits require "explicit waiver" of trial.  Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 142-43 (2d Cir.  1998); see also Miller v. LeSea Broad., Inc., 87 F.3d 224, 230 (7th  Cir. 1996); May v. Evansville-Vanderburgh Sch. Corp., 787 F.2d  1105, 1115-16 (7th Cir. 1986).


6
 We note that cross-motions for summary judgment, in and  of themselves, do not constitute waiver of jury trial.  See Winter,  199 F.3d at 407-08; Miller, 87 F.3d at 230; Market St. Assocs. Ltd.  Partnership v. Frey, 941 F.2d 588, 590 (7th Cir. 1991); John v. Louisiana, 757 F.2d 698, 705 (5th Cir. 1985).
We have found only two cases that have applied the clearly  erroneous standard of review to jury trial cases decided on cross-motions for summary judgment.  See Southwest Forest Indus., Inc. v. Westinghouse Elec. Corp., 422 F.2d 1013, 1017-18 (9th Cir. 1970); Gillespie v. Norris, 231 F.2d 881, 883-84 (9th Cir. 1956).  But cf.Page v. Work, 290 F.2d 323, 334 (9th Cir. 1961) (per curiam) (upon  rehearing, reversing, in a jury trial case, earlier finding that  the case had been submitted on the record).


7
 Lederle's argument ignores our case law that "[a]lthough  the qualification analysis could be understood to subsume the  concept of reasonable accommodation, we think it analytically  sounder to treat the two topics separately."  EEOC v. Amego, Inc.,  110 F.3d 135, 141 (1st Cir. 1997).


8
 Citing Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1  (1st Cir. 1998), Lederle claims that no relief may be granted to  Garca because she did not seek reinstatement.  As is evident from  a reading of that opinion, Duckworth does not stand for that  proposition.


9
 Lederle's argument that there was no intent to  discriminate based on disability misses the important point that  the ADA does more than prohibit disparate treatment.  It also  imposes an affirmative obligation to provide reasonable  accommodation to disabled employees.  See Soileau v. Guilford of  Me., Inc., 105 F.3d 12, 14-15 (1st Cir. 1997).


10
 In Feliciano, we said that "[t]he plaintiff, as the party  who must prove that he or she can perform the essential functions  of the position with or without reasonable accommodation, bears the  burden of showing the existence of a reasonable accommodation." Feliciano, 160 F.3d at 786 (citing Barnett v. U.S. Air, Inc., 157  F.3d 744, 748-49 (9th Cir. 1998)).


11
 Perhaps, alternatively, the statement was only hyperbole.


12
 The approach urged by Lederle on the district court also  ignores "[t]he duty to provide reasonable accommodation is a  continuing one . . . and not exhausted by one effort."  Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 171-72 (1st Cir. 1998). It is an interactive process that "requires a great deal of  communication between the employee and employer."  Criado, 145 F.3d  at 444 (internal quotation marks and citation omitted); see alsoHendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir.  1998) (describing the interactive process); Jacques v. Clean-Up  Group, Inc., 96 F.3d 506, 515 (1st Cir. 1996) ("There may well be  situations in which the employer's failure to engage in an informal  interactive process would constitute a failure to provide  reasonable accommodation that amounts to a violation of the ADA."). Here, Lederle failed to engage in the informal, interactive  process.  It simply rejected the request for the accommodation  without further discussion and it did so without pointing to any  facts making the accommodation harmful to its business needs.


13
 We are aware of, but see no reason to join, the debate in  the circuits on the relationship between the two concepts of undue  hardship and reasonable accommodation.  Compare Borkowski v. Valley  Cent. Sch. Dist., 63 F.3d 131, 138-39 (2d Cir. 1995); Walton v. Mental Health Assoc., 168 F.3d 661, 670 (3d Cir. 1999); and Stone v. City of Mount Vernon, 118 F.3d 92, 98-99 (2d Cir. 1997); withBenson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.  1995); and White v. York Int'l Corp., 45 F.3d 357, 361 (10th Cir.  1995); and with Barth v. Gelb, 2 F.3d 1180, 1186 (D.C. Cir. 1993); Willis v. Conopco, Inc., 108 F.3d 282, 285-86 (11th Cir. 1997); Barnett v. U.S. Air, Inc., 157 F.3d 744, 748-49 (9th Cir. 1998), amended by 196 F.3d 979, 989 (9th Cir. 1999), and withdrawn pending  en banc review, 201 F.3d 1256 (9th Cir. 2000); Riel v. Electronic  Data Sys. Corp., 99 F.3d 678, 682-83 (5th Cir. 1996); Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1183, 1186 n.12 (6th Cir.  1996); and Vande Zande v. Wisconsin Dept. of Admin., 44 F.3d 538,  542-43 (7th Cir. 1995).



39
O'TOOLE, District Judge, dissenting.


40
After criticizing  the district court for deciding this case as a matter of law, the  majority then does exactly the same thing. Holding that, on the  facts presented to the district court,  the plaintiff's request for  leave from her job1 was a reasonable accommodation under the  Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et  seq., the court directs the entry of a judgment as to liability in  favor of the party with the burden of proof.  Besides invading the  province of  fact-finding without warrant, the court's ruling  expands the reach of the ADA beyond what its language should  properly be understood to authorize.  I respectfully dissent.

I.

41
The plaintiff's illness caused her to have several  substantial periods of absence from work over the course of her  employment with the defendant.  She was able to be absent and yet  remain employed by taking advantage of a combination of employee  benefits, including sick leave and short-term disability leave.


42
It appears from the record that the last time she  actually worked was in November, 1995.  Beginning in late November,  in order to undergo a bone marrow transplant, she began a period of  short-term disability leave which apparently expired in March,  1996.  Still recuperating, she then began to receive long-term  disability benefits under her employer's plan.  In June, the  employer notified her that the one-year period for reservation of  her job -- that is, her right to return to her job from disability  status -- had also expired in March.2  She asked for a further  extension of the reservation of her right to return to work for a  few weeks, but her request was denied and her employment was  formally terminated.


43
The court now holds that her request for an extension  must be considered a "reasonable accommodation" of her disability  which the employer was bound to afford her under the ADA unless the  employer could demonstrate that doing so would cause it undue  hardship.  Since the employer proffered no evidence of undue  hardship, the court concludes that the plaintiff is entitled to  judgment in her favor as to liability.

II.

44
The plaintiff may be entitled to a remedy under the ADA  if she is a "qualified individual with a disability."  She is a  "qualified individual with a disability" if she has the requisite  skill and experience for the position, which is undisputed here,  and if she is able to "perform the essential functions of the  employment position" "with or without reasonable accommodation." See 42 U.S.C. § 12111(8); see also Criado v. IBM Corp., 145 F.3d  437, 443 (1st Cir. 1998).


45
There is no dispute that when Garca's employment was  terminated, she was not able to perform her job without an  accommodation.  She was not then performing it, and had not  performed it for some months.  Nonetheless, the court concludes  that the plaintiff would have been "qualified" to perform her job with the accommodation she requested:  that she be excused from  performing the job until she had recovered sufficiently to be able  to return to work once again.


46
When a period of leave from a job may appropriately be  considered an accommodation that enables an employee to perform  that job presents a troublesome problem, partly because of the  oxymoronic anomaly it harbors, but also because of the daunting  challenge of line-drawing it presents. The prevailing view among  the Courts of Appeals, and the law of this Circuit, is that a  period of leave can in some circumstances be a reasonable  accommodation required of an employer under the ADA.  See Criado,  145 F.3d at 443.  Put another way, it is wrong to say categorically  that leave can never be a reasonable accommodation.


47
The term "leave" is a capacious one, however, and the  cases do not hold that any leave will qualify as a reasonable  accommodation.  See Walsh v. United Parcel Serv., 201 F.3d 718,  726-27 (6th Cir. 2000) (finding leave requested by plaintiff  "objectively unreasonable").  "Reasonable accommodation" is also a  capacious term, purposefully broad so as to permit appropriate  case-by-case flexibility.  Whether a particular proposed leave is  a reasonable accommodation must be answered in the factual context  of the case at hand.  See, e.g., Criado, 145 F.3d at 443 ("Whether  the leave request is reasonable turns on the facts of the case."). Where many interrelated considerations bear on an assessment of  what is "reasonable," prudence cautions against too ready a resort  to summary dispositions as a matter of law.  See Ward v. Massachusetts Health Research Inst., 209 F.3d 29, 36 (1st Cir. 2000) (reversing summary judgment;  declining to hold accommodation unreasonable per se); Nunes v. Wal-Mart Stores, 164 F.3d 1243, 1248 (9th Cir. 1999) (reversing summary  judgment because reasonableness of leave was jury question); Cehrs v. Northeast Ohio Alzheimer's Research Ctr., 155 F.3d 775, 782-85  (6th Cir. 1998) (following Criado and reversing summary judgment  for employer); Criado, 145 F.3d at 444 (affirming denial of  employer's motion for judgment as a matter of law).  In any  context, however, to be a "reasonable accommodation" a measure must  be both an "accommodation" and "reasonable."


48
In the first place, an "accommodation" must serve a  functional purpose; it is a means to a desired end.  An  accommodation as contemplated by the ADA is a measure that enables  the performance of a job by a person who, without the measure, is  disabled from performing the job.  See 42 U.S.C. § 12111(9).  It  effectively transforms a disabled person into an enabled person for  the purposes of the job.


49
The converse follows.  If the measure does not enable the  otherwise disabled person to perform the essential functions of the  job, it loses its functional quality and consequently fails to  operate as an accommodation.


50
An accommodation must not only be functionally effective;  it must also be reasonable.3  Again, whether a proposed  accommodation is reasonable or not will ordinarily be judged on the  peculiar facts of a given case.  In most cases, it will be a matter  to be left to assessment and evaluation by the trier of fact.


51
Nonetheless, judges may sometimes be called upon to  decide what circumstances might make a proposed measure a  reasonable accommodation, or not, as a matter of law.  See Walsh,  201 F.3d at 726-27 (affirming grant of summary judgment in favor of  employer because plaintiff's requested accommodation was  "objectively unreasonable"); see also Evans v. Federal Express  Corp., 133 F.3d 137, 139-40 (1st Cir. 1998) (affirming summary  judgment, and holding that, under state law, accommodation not  shown likely to be successful was not reasonable).  There is hazard  in trying to speak too broadly or too categorically, especially in  this area where the varieties of potential accommodations, and the  reasons why any given accommodation might or might not be  reasonable, are myriad.  Still,  there will be cases in which a  court may appropriately take the question away from the trier of  fact and decide it as a matter of law.

III.

52
As the court's opinion points out, there is some  ambiguity in this record as to whether the parties presented the  case to the district court for judgment as a matter of law or for  decision on the court's fact-finding.  They presented a stipulation  of undisputed facts and cross-moved for summary judgment.  If  nothing else appeared, one would conclude that they were seeking  only a ruling of law.   But the parties' stipulation indicated  that they were submitting the liability portion of the case "to the  Court for adjudication on the merits of the legal controversies in  this matter."  "Adjudication on the merits" ordinarily suggests  more than summary judgment.  Unlike a full consideration of a case  after trial, summary judgment does not always end in an  adjudication, because even on cross-motions based on stipulated  facts, a court might conclude that neither side is entitled to win  as a matter of law and that the dispute must be submitted to the  fact-finder.  The full job of the fact-finder, after all, includes  not only settling conflicts in the "basic" facts, but also drawing  appropriate inferences from those facts.  By praying for  adjudication on the merits, the parties indicated that they  expected the district court to resolve the factual, as well as  legal, issues pertinent to the issue of liability.


53
Any lingering doubt as to what the parties intended is  dispelled by what they have told us.  Both sides asserted in their  briefs to us that the applicable standard of appellate review is  "clear error," the standard used to review fact-finding by a  district court.  Thus, both before the district court and before  this court, the parties presented the matter as having been  submitted as a "case stated" for full "adjudication" by the  district court.


54
Moreover, the district court's opinion indicates,  consistently with the parties' characterization, that the judge  thought he was not merely policing the fact-finding function under  Rule 56, but instead was performing it.  In posing the issue he was  presented with, he said,"[T]he Court must therefore determine  whether plaintiff's requested accommodation was reasonable under  the circumstances . . . ."  Garca-Ayala v. Lederle Parenterals,  Inc., 20 F. Supp. 2d 312, 315 (D.P.R. 1998).  He then went on, "The  Court finds that plaintiff's request was not reasonable under the  circumstances."  Id. (emphasis added).


55
Accordingly, I am in agreement with the court's  conclusion stated in Part III of its opinion that the parties  submitted the matter as a "case stated" and that review of the  district court's fact-finding is for clear error.4  Reich v. John  Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir. 1997); EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 603 (1st Cir.  1995).  The "clear error" standard applies not only to resolution  of factual disputes, but also to the factual inferences drawn by  the district court on the basis of the stipulated facts.  Id.


56
On the record presented and under an appropriate  application of  the statute's terms, a fact-finder's inference-based conclusion that the plaintiff's request for an extension of  her right to return to work was not a reasonable accommodation  cannot be called clearly erroneous.  The clearly erroneous standard  does not permit an appellate court to substitute its own evaluative  judgment of what was or was not reasonable, unless the district  court's conclusion was unquestionably, not just arguably, wrong. If the same facts that were presented to the judge below had been  presented to a jury, and if the jury had returned a verdict that  the requested leave was not a reasonable accommodation, I cannot  imagine that this court would disturb that finding.

IV.

57
Rather than challenging the district court's fact-finding  as clearly erroneous, the majority identifies two legal errors it  says the district court committed.  First, the court says the  district court failed to give individualized consideration to the  plaintiff's case, but instead decided that the plaintiff's request  for additional leave was per se unreasonable.  Second, the court  says that the district court improperly shifted the burden of proof  as to "undue hardship" by requiring the plaintiff to disprove it,  rather than requiring the employer to establish it.


58
The second purported error, I think, stems from an  incorrect reading of the district court opinion.  The issue argued  by the parties, and the issue decided by the district court, was  whether the plaintiff was a qualified person with a disability.  In  particular, resolution of that issue depended on whether the  plaintiff's request for further leave was a reasonable  accommodation.  The employer did not argue undue hardship.  Though  the district court opinion does state that granting the  accommodation would place the employer "in an untenable business  position,"  Garca-Ayala, 20 F. Supp. 2d at 315, in context that  phrase was used not as an elaboration of the "undue hardship"  affirmative defense, but as part of the court's explication of why,  in the district court's judgment,  the requested accommodation was  not reasonable.  I do not think it is accurate to say that the  district court was giving the employer the benefit of the "undue  hardship" affirmative defense, or shifting to the plaintiff the  burden to disprove that affirmative defense.


59
The other error the majority finds is that the district  court applied a per se rule about the permissible length of a leave  and, therefore, failed to make an individualized assessment of the  case.  I must say I do not quite understand this criticism.  I do  not find any indication in the district court's opinion that it  failed to give attention to the particulars of the case.  To the  contrary, the district court discussed in detail the facts of the  case as presented by the parties; it gave no less attention to the  "individualized" facts of the case than the parties did.


60
The majority cannot mean that the need for individualized  assessment of an ADA case necessarily precludes a disposition as a  matter of law, because this court has affirmed dispositions of ADA  cases as a matter of law.  See, e.g., Tardie v. Rehabilitation  Hosp., 168 F.3d 538 (1st Cir. 1999); Feliciano v. Rhode Island, 160  F.3d 780 (1st Cir. 1998).  And the majority certainly cannot mean  that the need for individualized assessment always requires  submission of the matter for decision by the trier of fact,  because, after all, the court's disposition now orders entry of  judgment for the plaintiff as a matter of law, without submission  to the trier of fact.


61
The more pertinent question is, if the district court  decided the case by making a pure ruling of law as the majority  apparently asserts, rather than by applying the law to the facts  and the permissible inferences it drew from them, was its ruling  incorrect?  Specifically, did the district court err in holding (if  it did) that no rational fact-finder could conclude that the  extension of leave requested by Garca was a reasonable  accommodation under the ADA?5  I would conclude that on the  particular facts of this case, such a ruling would not have been an  error.


62
The leave extension requested by the plaintiff was not a  reasonable accommodation as a matter of law because it was not an  accommodation at all as that term ought to be understood.  To be an  accommodation, the requested leave would have to do what an  accommodation under the ADA must do -- enable the employee to  perform the essential functions of her job.  To put it in terms of  the EEOC's proposed definition of  "reasonable accommodation,"  Garca's requested leave would not have been "effective."


63
It seems to me that the following proposition can be  extrapolated from the cases:  For a proposed period of leave to  constitute an effective accommodation, it must meet at least two  conditions.  First, it must be instrumental to effect or advance a  change in the employee's disabled status with respect to the job,  so that the employee is enabled to do it.  A period of leave would  meet this criterion if it permitted the employee to receive therapy  or treatment that would succeed in removing the obstacle to  employment the particular disability posed.  In Criado, for  example, the court noted that the employee's physician believed  that "the leave would ameliorate her disability."  145 F.3d at 444. Similarly, an EEOC interpretive guideline suggests that leave "for  necessary treatment" could be a reasonable accommodation, 29 C.F.R.  pt. 1630, app., and the Department of Labor advises that leave  might be a reasonable accommodation "when the disability is of a  nature that it is likely to respond to treatment."  29 C.F.R. pt.  32, app. A(b).  Simply the possibility of improvement is not  enough, however; the recovery must be reasonably likely.  SeeEvans, 133 F.3d at 140 (construing similar state statute). Further, the prospect of recovery (or enablement) should be judged  not by hindsight, but by what reasonably appears at the time the  leave is requested.  Id.


64
Second, the employee's return to work must be relatively  proximate in a temporal sense.  The cases do not speak with one  voice on this subject, and some give little attention to it, except  to imply that the temporal element will figure in the jury's  assessment of reasonableness.  Although there seems to be general  agreement that a leave period cannot be indefinite, the leave  periods that have been explicitly or implicitly approved vary in  length.  Some variation is not inappropriate; that is consistent  with the need to evaluate each case on its particular facts.


65
In the end, however, the leave must not only be one that  serves a proper medical purpose; it must also be one that serves  the statutory purpose, which is to enable the employee to perform  the essential functions of her job.  Cf. Evans, 133 F.3d at 140  (construing similar state statute).  It cannot be overlooked that  the statute speaks in the present tense, indicative mood.  A  "qualified individual with a disability" entitled to the statute's  protection is a person who "can perform the essential functions of  the employment position" with reasonable accommodation.  42 U.S.C.  § 12111(8) (emphasis added).  "Can perform," as in "now."  I would  not contend that the statute requires literally instantaneous  effectiveness of an accommodation.  By approving the idea that some leaves might qualify as reasonable accommodations, courts,  including this one, have properly rejected such a cramped and  unrealistic reading of the statute.  However, fidelity to both the  language and purpose of the statute requires that the time within  which the proposed accommodation accomplishes its intended purpose  -- enabling the employee to perform the job -- must be such that  the accommodation is tolerably consistent with the statutory words,  "can perform."


66
I would conclude that the plaintiff did not carry her  burden of proffering evidence that the leave she requested was  "effective" in these two essential ways.  She asked that the  employer abide her continued recuperation for an additional period,  but she offered little -- essentially an unelaborated prognostic  estimate -- that would enable an objective assessment either of the  realistic prospect of recovery as of the time of the request or of  the likely duration of her absence.  Further, I do not think the  requested leave could legitimately be said to be an accommodation  enabling her, more or less contemporaneously, to perform the  essential functions of the job.  It may have given her an  opportunity to become able again a couple of months down the road,  but that is something that this statute, properly construed, does  not address.


67
Before she began her most recent disability leave in  November, 1995, Garca was performing her job without  accommodation.  As of late August, 1996, she had apparently  recovered and was able again to perform her job without  accommodation.  Between November and late August, she was not able  to work.  The requested leave would not have changed that.  It  would not have made her able to work when she was unable, and when  she was able again, it was unnecessary.  In point of fact, it would  have had no effect on her actual ability to work.  What it would  have affected was the employer's ability to terminate her  employment because she could not work.  Restricting an employer's  ability to terminate an employee who is unable to work can be a  legitimate object of legislative regulation,6 but that is not the  objective of the statute we are considering.  It does not diminish  the importance or value of the ADA to conclude that it does not  solve all problems, and in particular that it does not solve the  problem of protecting job security for employees who need an  extended absence from the workplace for medical reasons.


68
Our obligation is to construe and apply the statute as it  was written, sensibly and consistently, so that, among other  things, both employers and employees will understand what it  requires and what it does not.  Discharging that obligation will  occasionally call for rulings that deny relief to plaintiffs such  as Garca who have endured extraordinary personal hardship.  We  make such rulings when necessary in every area of the law, and if  called on we should not shy from the obligation in this area as  well, without regard to our views as to whether the plaintiff was  not treated particularly well by her long-time employer or whether  the ADA ought to contain a provision it does not.

V.

69
Even if I were to agree with the majority that the  district court had not reached its conclusion as an adjudicator of  fact and law, but rather had improperly ruled that Garca's  requested accommodation was unreasonable as a matter of law, I  would nevertheless disagree with the court's disposition.


70
First, it should be plain from what I have already said  that I do not agree that the requested leave was so clearly a  reasonable accommodation that no rational fact-finder could  conclude otherwise.  Whether the opinion says it in so many words  or not, that is certainly the substance of its disposition.  If the  district court erroneously ruled as a matter of law, the proper  disposition of this case would be to vacate the judgment for the  employer and send the case back for trial by a fact-finder.  (I  would not hold either side to the waiver of jury trial made  previously.)


71
Second, the court's opinion gives inappropriate weight to  the employer's ability to replace Garca with a temporary employee  during her absence from the workplace.  I have two problems with  it.  To begin with, it is an inquiry more pertinent to the  affirmative defense of  "undue hardship," which was not argued by  the employer or considered by the district court.  As the court  notes, ante, at 648 n.13, there is considerable debate about the  relationship between the concepts of reasonable accommodation and  undue hardship, and I eagerly agree with the court that this case does not call for us to weigh in on that subject.  Since the "undue  hardship" defense was not argued or resolved below, I would leave  it alone.


72
More fundamentally, the court's opinion morphs the  meaning of the statute by suggesting that an accommodation that  permits the employer, without hardship, to hire someone else to  perform the essential functions of the job is equivalent to an  accommodation that permits the disabled employee to perform the  essential functions of the job.  Again, such a provision might be  an appropriate feature of a statute mandating leave policies, but  it is not a fitting part of a statute that forbids job  discrimination against disabled persons by requiring employers to  accept them as workers when -- preconceptions, stereotypes, and  "usual" business practices aside -- they are able to do the job.

VI.

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For these reasons, except as to the court's conclusion  about the nature of the proceedings below, I respectfully disagree  with the reasoning and dissent from the disposition set forth in  the court's opinion.



Notes:


1
 The court describes the plaintiff's request as one for a  period of leave.  I have some doubt as to whether that is the best  way to describe her request that her job reservation rights be  extended longer than the normal period.  I am content, however, to  accept the court's characterization for the purposes of this  discussion.


2
 It does not appear that the plaintiff challenged that  calculation either at the time or in her suit.  The employer  asserts without contradiction that its one-year job reservation  period was equal to the period guaranteed under Puerto Rican law.


3
 The EEOC as amicus argues that a reasonable accommodation  is one that is "feasible" and "effective." EEOC Br. at 14, 16.   It  seems to me that view gives short shrift to the modifier. "Feasible  and effective" could be a shorthand way of expressing the  functionality necessary to make  the measure an accommodation.  The  inclusion of the modifier indicates that the measure must not only  be "feasible and effective," i.e. functional, but "reasonable" to  boot.


4
 Of course, any purely legal rulings are subject to de  novo review.


5
 The district court expressly recognized that a leave may  qualify as a reasonable accommodation in some circumstances. Garca-Ayala, 20 F. Supp. 2d at 315.  It is clear, therefore, that  it did not rule that a period of leave could never be a reasonable  accommodation, and thus the ruling is not in direct conflict with  any of our precedents.


6
 Congress has addressed the problem in the Family and  Medical Leave Act, 29 U.S.C. §§ 2601 et seq.  Whether it has done  so sufficiently is not for our consideration, at least on this  occasion.


