EEOC Issues New Guidance Addressing Employer-Provided Leave and the Americans with Disabilities Act

The U.S. Equal Employment Opportunity Commission reports a recent increase in discrimination claims in which employees assert the unlawful denial of leave as a reasonable accommodation. As a result, the EEOC issued a new resource document addressing issues related to employer-provided leave and the Americans with Disabilities Act of 1990, as amended. The resource makes no changes to existing law or policy. Rather, it provides employers practical guidance on a common and often complicated issue – when leave must be granted for reasons related to an employee’s disability. This article summarizes an employer’s general obligations under the ADA and highlights the key issues involved in managing disability-related leave requests.

The Americans with Disabilities Act of 1990

The ADA prohibits discrimination based on disability and requires covered employers to provide reasonable accommodations to qualified employees with disabilities. A reasonable accommodation is any change in the work environment that enables an individual with a disability to perform the essential functions of his/her job. Many employers may not realize that such accommodation includes providing leave when needed for a disability, even when leave is not offered to other employees.

To make a request for an accommodation under the ADA, an employee need not mention the ADA or use the phrase “reasonable accommodation.” Thus, any time an employee indicates that he/she is having any difficulty related to a medical condition, the employer should consider whether the employee is making a request for an accommodation. The ADA can be triggered by an employee’s seemingly simple request to be out of the office for any period of time due to a medical condition. When in doubt, employers should assume a request has been made and proceed with the ADA’s interactive process.

After receiving an accommodation request, the employer and the employee should engage in an interactive process to clarify the employee’s specific needs and determine what, if any, accommodation should be provided. Importantly, the employer is not required to provide the employee’s desired accommodation; it can always provide an alternative option that reasonably accommodates the employee’s disability. Furthermore, the employer can deny a request for a reasonable accommodation – including leave – when granting such a request would impose an undue hardship on its operations or finances.

Existing Employer-Provided Leave Policies

Employees with disabilities must be provided with equal access to an employer’s existing leave policy. If the employer offers paid or unpaid leave as an employee benefit (often referred to as annual leave, personal days or sick leave), the benefit must be applied consistently among all similarly situated employees. Thus, if an employer receives a request for leave for reasons related to a disability, and the leave falls within the existing leave policy, the employer should treat the request the same as one unrelated to a disability. For example, if an employer does not require a doctor’s note from all employees under a leave policy, it may not require a doctor’s note from an employee who uses leave under that same policy for disability-related purposes. Requiring an employee to submit a doctor’s note under an existing leave policy is only okay if the employer applies that same requirement to all leave requests under the policy.

Employers are allowed to have leave policies that establish the maximum amount of leave an employee may take. If an employee, however, requests leave beyond the maximum amount due to his/her disability, the employer must consider providing unpaid leave as a reasonable accommodation as explained below. This requirement is true even if the employer’s maximum leave amount is compliant with the 12-week requirement under the Family and Medical Leave Act of 1993.

Leave as a Reasonable Accommodation

Requests for disability-related leave often fall outside of an existing leave policy. This circumstance occurs 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 leave exhausted under a workers’ compensation program, or the FMLA or similar state or local laws).

In these situations, the employer must promptly engage in the interactive process with the employee to consider providing unpaid leave as a reasonable accommodation. The employer, however, is not required to provide paid leave beyond what it provides under an existing leave policy as a reasonable accommodation. Furthermore, as with a request for any type of accommodation, the employer can deny a request for leave as a reasonable accommodation when granting such a request would impose an undue hardship on its operations or finances.

The Interactive Process

The interactive process enables the employer to obtain relevant information from the employee to determine the feasibility of providing the leave as a reasonable accommodation without causing undue hardship. The employer should focus on the following issues:

• 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.

The employer may obtain information from the employee’s health care provider (with the employee’s permission) to confirm or to elaborate on information that the employee has provided. The employer may ask the health care provider additional questions designed to enable the employer to understand the need for leave, the amount and type of leave required, and whether reasonable accommodations other than (or in addition to) leave may be effective.

Once the employer has granted leave as an accommodation with a fixed return date, it may not ask the employee to provide periodic updates during the granted leave period. If the employee, however, requests an extension of leave beyond the fixed return date, the employer may resume the interactive process and ask further questions and obtain additional information. Similarly, if the employee’s request did not include a fairly specific return date, the employer may continue the interactive process during the leave period and request updates.

Undue Hardship

If granting leave as an accommodation would cause an undue hardship, the employer is not required to grant the leave. Determining whether leave would cause an undue hardship under the ADA is a very fact-specific analysis. The employer may consider the impact of the employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner. The employer may also consider the impact on its operations and its ability to serve customers appropriately and in a timely manner when assessing whether leave would constitute an undue hardship. When faced with determinations of undue hardship, the employer is strongly encouraged to consult with legal counsel.

Reasonable Accommodation Upon The Employee’s Return to Work

An employee on leave for a disability may request a reasonable accommodation in order to return to work. This request may come directly from the employee or may be contained in a doctor’s note releasing the employee to return to work with certain restrictions. In these cases, the employer should promptly engage in the interactive process with the employee and may ask why the restrictions are required and how long they may be needed. As with any request for a reasonable accommodation, the employer is not obligated to provide the employee’s preferred accommodation; it may discuss and decide on alternative ways to accommodate a medical restriction. The employer is not required to provide an accommodation that would cause an undue hardship.

Requiring an employee to be “100 percent healed” before returning to work is a violation of the ADA. If an employee with a disability can perform his/her job with or without reasonable accommodation, an employer may not require the employee to have no medical restrictions (unless providing accommodations for such restrictions would cause an undue hardship). If an employer claims an employee with medical restrictions poses a safety risk, it must show that the employee is a “direct threat,” meaning the employee’s disability poses a significant risk of substantial harm to himself/herself or others. Even when an employee’s disability poses a direct threat, the employer is still obligated to engage in the interactive process to determine whether a reasonable accommodation will eliminate or diminish the threat.

An employee may request to be reassigned to a new job upon his/her return to work. The EEOC recognizes reassignment as a reasonable accommodation, particularly when the disability prevents the employee from performing one or more essential functions of the current job or when any accommodation in the current job would result in undue hardship. If reassignment is required, the employer must place the employee in a vacant position for which he/she is qualified, without requiring the employee to compete with other applicants for open positions. Reassignment, however, does not require promotion. Furthermore, an employer is not required to place an employee in a vacant position as a reasonable accommodation when another employee is entitled to the position under a uniformly-applied seniority system.

While the EEOC’s new guidance provides some clarity on when and how leave must be granted as a reasonable accommodation to an employee with a disability, such scenarios can still be tricky for an employer to navigate. To ensure compliance under the ADA, employers should first examine any existing leave policies to see that they are applied consistently among employees with disabilities and similarly situated employees. Employers should evaluate each disability-related request for additional leave as they would for any other type accommodation request – by engaging in the interactive process with the employee to determine a reasonable accommodation. Similarly, employers must engage in the interactive process when an employee requests an accommodation upon his or her return to work following a leave period and should consider reassignment as a possibility. Because situations involving leave and disabilities can be quite complicated, employers should contact legal counsel for guidance as soon as disability-related leave requests arise.