Americans with Disabilities Act: Employer-provided Leave

The Equal Employment Opportunity Commission (EEOC) has provided guidance on when and how leave must be granted to disabled employees as a reasonable accommodation under the Americans with Disabilities Act (ADA). This Compliance Overview summarizes the EEOC’s guidance on employer-provided leave under the ADA.

The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability in employment and requires that covered employers (those with 15 or more employees) provide reasonable accommodations to employees with disabilities. The Equal Employment Opportunity Commission (EEOC) has provided guidance on when and how leave must be granted to disabled employees as a reasonable accommodation. According to the EEOC, employers may need to take the following steps to comply with the ADA:

• Modify their policies that limit the amount of leave employees can take when an employee needs additional leave as a reasonable accommodation;
• Change their policies that require employees on extended leave to be 100 percent healed before returning to work; and,
• Consider reassignment as an option for employees who cannot return to their jobs following leave. 

Equal Access to Leave

According to the EEOC, employees with disabilities must be provided with access to leave on the same basis as all other similarly situated employees. If an employer receives a request for leave for reasons related to a disability and the leave falls within the employer's existing leave policy, it should treat the employee requesting the leave the same as an employee who requests leave for reasons unrelated to a disability.

Employers may have policies that require all employees to provide a doctor's note or other documentation to substantiate the need for taking leave.

Leave as a Reasonable Accommodation

The purpose of the ADA's rules regarding reasonable accommodations is to require employers to change the way things are customarily done to enable employees with disabilities to work. Leave as a reasonable accommodation is consistent with this purpose when it enables an employee to return to work following the period of leave.

Requests for leave related to disability can often fall under existing employer policies. In those cases, the employer's obligation is to provide persons with disabilities with access to those policies on equal terms as similarly situated individuals.

That is not the end of an employer's obligation under the ADA though. An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer. That is the case 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 leave exhausted under a workers' compensation program, or the FMLA or similar state or local laws).

Reasonable accommodation does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy. Also, as is the case with all other requests for accommodation, an employer can deny requests for leave when it can show that providing the accommodation would impose an undue hardship on its operations or finances. 

An employer may not penalize an employee for using leave as a reasonable accommodation. Doing so would be a violation of the ADA because it would render the leave an ineffective accommodation; it also may constitute retaliation for use of a reasonable accommodation.

Employee Leave – Interactive Process

Communication after an Employee Requests Leave

When an employee requests leave for a medical condition, the employer must treat the request as one for a reasonable accommodation under the ADA. However, if the request for leave can be addressed by an employer's leave program, the FMLA (or a similar state or local law), or the workers' compensation program, the employer may provide leave under those programs. But, if the leave cannot be granted under any other program, then an employer should promptly engage in an "interactive process" with the employee—a process designed to enable the employer to obtain relevant information to determine the feasibility of providing the leave as a reasonable accommodation without causing an undue hardship.

The information required by the employer will vary from one employee to another. Sometimes the disability may be obvious; in other situations, the employer may need additional information to confirm that the condition is a disability under the ADA. However, most of the focus will be on the following issues:

• The specific reason(s) the employee needs leave (for example, surgery and recuperation, adjustment to a new medication regimen, training of a new service animal, or doctor visits or physical therapy);
• Whether the leave will be a block of time (for example, three weeks or four months), or intermittent (for example, one day per week, six days per month, occasional days throughout the year); and
• When the need for leave will end.

Depending on the information the employee provides, the employer should consider whether the leave would cause an undue hardship.

Communication during Leave and Prior to Returning to Work

The interactive process may continue even after an initial request for leave has been granted, particularly if the employee's request did not specify an exact or fairly specific return date, or when the employee requires additional leave beyond that which was originally granted.

However, an employer that has granted leave with a fixed return date may not ask the employee to provide periodic updates, although it may reach out to an employee on extended leave to check on the employee's progress.

Maximum Leave Policies

The ADA requires that employers make exceptions to their policies, including leave policies, in order to provide a reasonable accommodation. Although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, they may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship.

Types of Maximum Leave Policies

Maximum leave policies (sometimes referred to as "no fault" leave policies) take many different forms. A common policy, especially for entities covered by the FMLA, is a flat limit of 12 weeks for both extended and intermittent leave. Other varieties exist though. Some maximum leave policies have caps much higher than 12 weeks. Others, particularly those not covered by the FMLA, set lower overall caps. Employers also frequently implement policies that limit unplanned absences. For example, a policy might permit employees to have no more than five unplanned absences during a 12-month period, after which they will be subject to progressive discipline or termination.

Employees with disabilities are not exempt from these policies as a general rule. However, these policies may have to be modified as a reasonable accommodation for absences related to a disability, unless the employer can show that doing so would cause undue hardship.

Return to Work and Reasonable Accommodation (Including Reassignment)

Employees on leave for a disability may request reasonable accommodation in order to return to work. The request may be made by the employee, or it may be made in a doctor's note releasing the employee to return to work with certain restrictions.

100 Percent Healed Policies

An employer will violate the ADA if it requires an employee with a disability to have no medical restrictions—that is, be "100 percent" healed or recovered—if the employee can perform his or her job with or without reasonable accommodation, unless the employer can show that providing the needed accommodations would cause an undue hardship.

Similarly, an employer will violate the ADA if it claims an employee with medical restrictions poses a safety risk but it cannot show that the individual is a "direct threat."

If necessary, an employer should initiate the interactive process upon receiving a request for reasonable accommodation from an employee on leave for a disability who wants to return to work (or after receiving a doctor's note outlining work restrictions). Some issues that may need to be explored include:

• The specific accommodation(s) an employee requires;
• The reason an accommodation or work restriction is needed (that is, the limitations that prevent an employee from returning to work without reasonable accommodation);
• The length of time an employee will need the reasonable accommodation;
• Possible alternative accommodations that might effectively meet the employee's disability-related needs; and
• Whether any of the accommodations would cause an undue hardship.

Reassignment

In some situations, the requested reasonable accommodation will be reassignment to a new job.

Reassignment does not include promotion, and generally an employer does not have to place someone in a vacant position as a reasonable accommodation when another employee is entitled to the position under a uniformly applied seniority system.

Undue Hardship

When assessing whether to grant leave as a reasonable accommodation, an employer may consider whether the leave would cause an undue hardship. If it would, the employer does not have to grant the leave. Determination of whether providing leave would result in undue hardship may involve consideration of the following:

• 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 (for example, the specific day that an employee needs leave because of a seizure is unpredictable; intermittent leave to obtain chemotherapy is predictable);
• The impact of the employee's absence on co-workers 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.

In many instances, an employee (or the employee's doctor) can provide a definitive date on which the employee can return to work. In some instances, only an approximate date or range of dates can be provided. Sometimes, a projected return date or even a range of return dates may need to be modified in light of changed circumstances, such as where an employee's recovery from surgery takes longer than expected. None of these situations will necessarily result in undue hardship, but instead must be evaluated on a case-by-case basis.

Indefinite leave—meaning that an employee cannot say whether or when she will be able to return to work at all—will constitute an undue hardship, and does not have to be provided as a reasonable accommodation.

Source: U.S. Equal Employment Opportunity Commission

For more information, reach out to us at Hausmann-Johnson Insurance. We're happy to help.