EEOC Publishes Guidance Regarding Employee Leave as a Reasonable Accommodation Under the Americans With Disabilities Act
On May 9, 2016, the Equal Employment Opportunity Commission published long-awaited guidance addressing the rights of disabled employees to leave from work as a reasonable accommodation under the ADA. While the guidance fell far short of addressing many of the recurring concerns which employers confront regularly (for example, exactly how much leave can ever be enough), the EEOC did confirm its position relative to the following aspects of employee leave requests under the ADA:
1. Employers will often be required to grant unpaid leave as a reasonable accommodation even if the requesting employee is not otherwise entitled to the leave under the Family and Medical Leave Act or under the employer’s own internal leave policies. For example, if an employee has been employed for only three months, he/she would not be entitled to take time off from work under the FMLA or perhaps under the employer’s established policies and procedures. However, the employer may be required to provide the requested leave under the ADA, absent proof that the leave would pose an undue hardship on the organization.
2. An employer will violate the ADA if it requires a disabled employee to have no medical restrictions in order to return to work, i.e. to be 100% healed or recovered, if the employee can perform the job with or without a reasonable accommodation, unless the employer can prove that providing accommodation would constitute an undue hardship.
3. The ADA requires employers to make exceptions to their policies, including maximum leave policies, in order to provide a disabled employee a reasonable accommodation.
4. When an employee requests leave, or an extension of leave, for a medical condition, the employer should consider whether the request could trigger the interactive process and a reasonable accommodation under the ADA.
5. Indefinite leave of absence, i.e. when an employee or employee’s physician cannot say whether or when the employee will be able to return to work, is likely an “undue hardship.
6. As with all requests for a reasonable accommodation, an employer may consider whether the requested leave would constitute an undue hardship, thereby relieving the employer of the obligation to provide the leave. The EEOC noted the following considerations relevant to the “undue hardship” determination in the context of leaves of absence: a) the amount of leave required, b) the frequency of the leave, c) whether the employee has any flexibility with days on which the leave is taken, d) whether the need for leave is predictable or unpredictable, e) the impact of the employee’s leave on his/her coworkers, and f) the impact on the employer’s operations and ability to serve its customers and clients. The EEOC cautioned that whether an accommodation presents an undue hardship must be evaluated on a case-by-case basis.
7. The Commission re-affirmed its longstanding position that reassignment to a vacant position could be a reasonable accommodation for an employee who seeks to return to work but can no longer perform one or more essential functions of his/her current position. And, according to the Commission, if reassignment is required, the employer must place the employee in the vacant position without requiring him/her to compete with other applicants for the open position.