EEOC Issues Guidance on Employer-Provided Leave and the ADA
Published by Eric A. Welter and Sarah Tudor Glaser on July 19, 2016
The EEOC notes that policies that require employees on extended leave to be 100 percent healed or able to return to work without restrictions may be violations of the ADA, and that employers should consider reassignment as an option for employees who cannot return to their position following leave.
On May 9, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued a resource document addressing Employer-Provided Leave and the Americans with Disabilities Act (“ADA”). According to the EEOC, it receives charges that indicate that employers may not be aware of the EEOC’s position on leave and the ADA, including that they may be required to modify their policies limiting the amount of leave an employee can take.
The EEOC also notes that policies that require employees on extended leave to be 100 percent healed or able to return to work without restrictions may be violations of the ADA, and that employers should remember to consider reassignment as an option for employees who cannot return to their position following leave. The full document is available on the EEOC’s website. It is highly recommended that employers review the resource document, including the helpful examples included within, and refer to it when addressing issues related to employees returning from leave.
The EEOC highlights several key issues, which are summarized below:
Equal Access to Leave Under an Employer’s Policy
Employees seeking leave for a reason related to a disability must always be treated the same as other similarly situated employees seeking leave for a reason not related to a disability. This includes the amount of documentation an employee is required to provide to support the leave (Examples 1 and 3) and how the leave is designated (Example 2). Although employers with a neutral policy requiring all employees to submit a doctor’s note for absences are entitled to enforce the policy, employers may not request documentation from a disabled employee more than it would have been requested from a non-disabled employee under similar circumstances. If an employer has a general paid time off (“PTO”) policy that entitles employees to take leave for any reason, the employer cannot stop employees from using PTO for absences related to a disability, even if the employer has a separate sick leave policy.
Granting Leave as a Reasonable Accommodation
The EEOC explains that leave may be granted as a reasonable accommodation as long as it does not create an undue hardship for the employer. This is true even if: (1) the employer does not offer leave as a benefit; (2) the employee is not eligible for leave; or (3) the employee has exhausted all leave available to him or her. This is counterintuitive to many and a source of confusion during the process that can leave to unknowing violations of the ADA.
Leave and the Interactive Process Generally
When an employee requests leave or additional leave for a medical condition, the employer must treat the request as one for a reasonable accommodation under the ADA. If the leave cannot be addressed under another program (like the employer’s leave policies, the FMLA, or workers’ compensation), the employer should promptly engage in the interactive process with the employee to determine whether leave can be provided as a reasonable accommodation. The EEOC lists information that an employer may obtain from the employee to engage in the interactive process and make a determination regarding whether leave (or another accommodation) is appropriate.
Maximum Leave Policies
The EEOC makes very clear that the ADA requires that employers make exceptions to their policies, including leave policies, in order to provide a reasonable accommodation to employees with disabilities. Practically speaking, this means that in order to comply with the ADA, an employer may have to grant leave beyond the maximum amount of time permitted by its leave policies. For example, if an employee has exhausted her leave under the employer’s leave of absence policy and requests an additional three weeks of leave due to her disability, the ADA may require that the employer grant the leave provided it would not result in an undue hardship.
Employers who have a policy or practice of automatically terminating employees who remain out of work after they have exhausted their leave should reconsider this practice, which could result in failure to provide an extension of leave, which is a denial of a reasonable accommodation in violation of the ADA. Additionally, employers who have form letters that they send to employees as they near the end of their leave are urged to include language informing the employee that it is the company’s policy to provide reasonable accommodation (including an extension of leave) for all qualified employees with disabilities.
Return to Work and Reasonable Accommodation
The EEOC also makes very clear that it is a violation of the ADA to require an employee with a disability to have no medical restrictions or to be 100% healed. Rather, employers should evaluate whether the employee can perform his or her job with or without a reasonable accommodation. The EEOC details what additional information an employer may ask for if an employee returns to work with restrictions, including why the restrictions are required and how long they may be needed as well as possible accommodations.
The EEOC explains all of the factors that an employer should consider when determining if additional leave will cause an undue hardship. The determination should be made on a case-by-case basis. However, beyond listing factors for consideration, the resource document doesn’t really explain how the decision should be made, so that difficult task is still left up to employers. It should be noted, however, that the EEOC reiterates once again that an indefinite leave constitutes an undue hardship and does not need to be provided as a reasonable accommodation.
The EEOC’s Employer Provided Leave and the Americans With Disabilities Act resource document is a helpful document for employers to review and refer to when addressing issues related to employee leave for medical reasons. In addition, the nuances discussed compel employers to evaluate their existing policies to ensure that the distinctions discussed are properly addressed through their current procedures in situations involving employee leave.Topics: ADA, Americans with Disabilities Act, Disability Accommodations and Access, EEOC, Employer-Provided Leave, Equal Employment Opportunity Commission, Financial Services, FMLA, Government Contracting, Healthcare, Hospitality, leaves of absence, Media & Entertainment, policies, Procedures and Employee Handbooks, Retail, Technology, Transportation