EEOC Issues New Guidance To Clarify The Interface Between Employee Leave And The Americans With Disabilities Act
By NANCYJ. TOWNSEND and SAMUEL C. BLINK
The EEOC has recently released guidance to inform employers when and how leaves of absence must be granted to accommodate employees’ disabilities, as required by the Americans with Disabilities Act (ADA).
EQUAL ACCESS TO LEAVE UNDER AN EMPLOYER’S LEAVE POLICY
Employees with disabilities must have access to leave on the same basis as all other employees. So, if an employee’s request for leave would be allowed under the employer’s existing leave policy, that request should be treated the same as a request by any other employee for reasons unrelated to a disability.
GRANTING LEAVE AS A REASONABLE ACCOMMODATION
The EEOC guidance makes clear that reasonable accommodation under the ADA may include adjustments in the employer’s leave policy. So, the employer must allow unpaid leave as a reasonable accommodation, if it does not create an undue hardship on the employer. And, of course, the employer cannot penalize an employee for requesting or using leave as a reasonable accommodation.
When assessing whether leave would create an undue hardship, the employer may consider several factors, including:
- the amount and 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 or clients appropriately and in a timely manner.
EMPLOYEE LEAVE AND THE INTERACTIVE PROCESS
The EEOC warns that if an employee with a disability needs more time off than the existing leave policy, FMLA leave, or workers’ compensation leave would allow, the employer must “change the way things are customarily done” to enable that employee to work. The employer must promptly engage the employee in the “interactive process” to determine the feasibility of additional unpaid leave to accommodate the disability.
Through this interactive process, the employer might ask for specific reasons the employee needs the leave, whether the leave is a block of time or intermittent, whether specific days of the week are needed, whether the leave is predictable or not, when the need for leave will end, and whether other accommodations may also be effective for the employee. The employee should work with a health care provider to get prompt answers to these questions. With the employee’s permission, the employer can likewise obtain information from the employee’s health care provider to confirm or elaborate on information that the employee provided.
The interactive process may continue while the employee is absent, especially if the employee did not provide a fixed return date. An employee with a fixed return date cannot be required to give periodic updates, although the employee may reach out to check on the progress of an employee on extended leave.
ADAPTING EXISTING LEAVE POLICIES
Employers with maximum leave policies, beware: a company policy that allows a maximum of 12 weeks per year as unpaid leave would likely comply with the Family and Medical Leave Act (FMLA), but could clearly violate the ADA. Likewise, a policy that imposes discipline after a specified number of unplanned absences could also violate the ADA when the absences relate to an employee’s disabilities. The ADA requires employers to make exceptions to these policies, as a reasonable accommodation for employees with disabilities unless the exception would create an undue hardship.
RETURN TO WORK
An employer will violate the ADA by prohibiting an employee with a disability from returning to work until all medical restrictions have cleared. Instead, an employee must be permitted to return from leave with doctor-provided restrictions if the employee can perform the essential functions of the job, with or without accommodations. In some situations, the requested reasonable accommodation will be reassignment to a new job. The EEOC takes the position that if reassignment is required, the employer must reassign to a vacant position for which the employee is qualified, without competing with other applicants. But, the employer need not place an employee with a disability in a position to which another employee is entitled under a uniformly-applied seniority system. The EEOC advises the employer to work with the employee and the employee’s medical providers to explore possible reasonable accommodations that do not create an undue hardship.
COMMUNICATION ISSUES FOR EMPLOYERS WITH MAXIMUM LEAVE POLICIES
An employer’s use of form letters that instruct employees to return to work by a certain date or face discipline or termination might give rise to a claim under the ADA. Instead, the EEOC suggests that employers modify such letters simply to ask the employee to maintain communication with the employer and inform the employer as early as possible if the employee needs additional unpaid leave. This invites a continuation of the interactive process, enables the employer to assess whether the additional leave can be granted, and minimizes the potential hardship to the employer.
NAVIGATING EMPLOYEE LEAVE AND THE ADA
Please contact Nancy J. Townsend at (219) 769-1313 with any questions concerning your employment or accessibility responsibilities under the ADA.
NANCY TOWNSEND is a partner in the law firm of Burke Costanza & Carberry LLP. She provides legal services to employers and human resource departments to devise and implement employment policies, employment agreements, non-compete agreements, confidentiality agreements, and employer handbooks that comply with federal and state law. She also defends employment litigation, assists with EEOC and civil rights investigations of employers, aids in the resolution of employee disputes, and advises on wage and hour and discrimination matters.
Ms. Townsend is admitted to practice in Indiana, Illinois, and Texas and nearly all of the federal and state courts in those jurisdictions. She is a member of the American Bar Association, Indiana Bar Association, Illinois Bar Association and Lake County Bar Associations, as well as the Notre Dame Clubs of Chicago and Northwest Indiana. She earned her B.A. degree from Marian University and her J.D. degree from Notre Dame Law School.
SAMUEL C. BLINK is a third-year law student at the Robert H. McKinney School of Law: Indiana University and is a summer associate at the law firm of Burke Costanza & Carberry LLP.
This article is intended for general interest and is not intended to be used or relied upon as legal advice.