Earlier this week, the Equal Employment Opportunity Commission (EEOC) issued a new resource document on when leave constitutes a reasonable accommodation under the Americans with Disabilities Act (ADA). Although the EEOC has always taken the position that employer-provided leave can be a reasonable accommodation, the new document highlights some of the standards for when and how leave must be granted. At its core, the EEOC resource clarifies that unpaid leave is a reasonable accommodation unless the employer can show that the leave causes an undue burden.
The new EEOC document covers the following topics and provides specific examples of each:
- Equal Access To Leave. Employees with disabilities must be afforded access to leave on the same basis as all other similarly-situated employees. In other words, if an employer receives a request for leave from a qualified disabled employee, and the leave would be covered under the employer’s existing leave policy, the employer must treat the individual the same as an employee who requests leave for reasons unrelated to a disability. The EEOC notes here that “employers are entitled to have policies that require all employees to provide a doctor’s note or other documentation to substantiate the need for leave,” but employers can’t apply that requirement discriminatorily.
- Unpaid Leave. Employers must consider providing unpaid leave as a reasonable accommodation to an employee with a disability if the employee requires it to return to work, as long as the leave would not create an undue hardship on the employer’s operations or finances. This is required even if: “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 …”
- Interactive Process. The employer is required to engage in an “interactive process” with the employee once the employee requests leave and the employer determines that the leave is not permitted under another program (such as PTO, FMLA or Worker’s Compensation). As the EEOC acknowledges, the interactive process will likely continue during the employee’s leave, with the employer checking in on the employee’s progress and/or need for additional leave. When a leave is at issue, the EEOC recommends that the process focus on the following questions:
- “the specific reason(s) the employee needs leave …
- whether the leave will be a block of time…, or intermittent …; and
- when the need for leave will end
- Maximum Leave Policies. Employers may have leave policies that establish a maximum amount of leave allowed, but more time above the maximum would be a reasonable accommodation, unless the employer can show that allowing such leave would cause an undue hardship.
- Return to Work. An employer cannot require an employee to be “100% healed or recovered” to return to work — it must provide the employee a reasonable accommodation (including reassignment, for example) as long as the accommodation does not create an undue hardship. An employer can refuse to allow an employee to come back to work with a medical restrictions only if the employee would pose a “direct threat” of substantial harm to him/her self or to others.
- Undue Hardship. When considering whether a leave would cause an undue hardship, the EEOC considers the following factors:
- “the amount and/or length of leave required…;
- the frequency of the leave…;
- 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 customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer.”
We encourage all employers to read this new EEOC resource document in full. Although “nothing new” per se, it serves as a great reminder for ADA compliance and offers many specific examples that may be pertinent to your own employee leave issues.