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EEOC Guidance for Employer-Provided Leave and the Americans with Disabilities Act

The EEOC recently published general information for employers and employees discussing how and when leave relating to an employee’s disability must be granted in compliance with the Americans with Disabilities Act (“ADA”).  The ADA requires employers covered under the ADA to provide reasonable accommodations to employees with disabilities who are in need of such accommodations because of their disabilities. Reasonable Accommodation Reasonable accommodation is “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” Often, an employee’s request for leave relating to a disability falls within an employer’s customary leave policy, and this request should be treated as any other employee request for leave.  However, an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation, so long as the employer does not suffer an undue hardship, even when:
  • The employer does not offer leave as an employee benefit;
  • The employee is not eligible for leave under the employer’s policy; or
  • The employee has exhausted the leave the employer provides as a benefit (including any other program, such as workers’ compensation or FMLA).
Importantly, an employer may not penalize an employee for using leave as a reasonable accommodation. Employee Leave and the Interactive Process An employee’s request for leave, or additional leave, for a disability must be treated as one for reasonable accommodation.  If a current leave program cannot grant the leave, the employer and employee must engage in an interactive process.  The interactive process helps determine relevant information in deciding whether providing the leave request is a reasonable accommodation without causing an undue hardship. An employer may need additional information during this interactive process from the employee, including:  specific reason(s) for the leave; whether the leave will be a set time frame or intermittent; and when the need for leave will end.  The interactive process may continue if an employee’s request did not specify a return date, or if additional leave is requested.  If an employee has a fixed return date, however, an employer may not seek periodic updates, but may only reach out to check the employee’s progress.  Employers using “form letters” or who separately handle regular leave requests from reasonable accommodation requests will need to ensure its process does not mishandle a reasonable accommodation request. Return to Work & Reasonable Accommodation An ADA violation occurs if an employer requires an employee with a disability to have no medical restrictions, if the employee can perform his or her job with or without reasonable accommodation, unless the employer shows an undue hardship.  The interactive process involving an employee willing to return to work requires an employer to explore:
  • Specific accommodation(s) an employee requires
  • Reason(s) an accommodation or work restriction is needed
  • Length of time a reasonable accommodation is needed
  • Possible alternative accommodations (for example, reassignment)
  • Whether any accommodation(s) would cause an undue hardship
Undue Hardship If leave is a reasonable accommodation, an employer does not have to grant the leave if it would cause an undue hardship.  Determination of whether providing leave would result in undue hardship allows consideration of the following:
  • The amount and/or length of leave required;
  • The frequency of the leave;
  • Leave already taken by the employee pursuant to any leave program;
  • Whether there is any flexibility with respect to the days on which leave is taken;
  • Whether the need for intermittent leave on specific dates is predictable or unpredictable;
  • The impact of the employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner; and
  • The impact on the employer’s operations and its ability to serve customer/clients appropriately and in a timely manner
Undue hardship is not necessarily met if an above situation is present, but must be evaluated on a case-by-case basis.  Indefinite leave, however, will constitute an undue hardship. If you have any questions or concerns regarding Employer-Provided Leave and ADA compliance, please contact an attorney with our firm for assistance.