Essential Employer Review: EEOC Guidance on Leave as a Reasonable Accommodation
Let's start off the New Year by avoiding litigation, shall we? A helpful resource to do so comes to you courtesy of the EEOC.
Last year, the EEOC issued a resource document addressing leave as a reasonable accommodation under the ADA, entitled “Employer-Provided Leave and the Americans with Disabilities Act.” New Year's Resolution - employers and human resource professionals should print and read a copy of this resource in full. Although this document does not carry the weight of official EEOC guidance, you can bet your bottom dollar that Investigators of Charges of Discrimination filed against your company will be using it to assess liability. Below, I highlight key aspects from the resource essential to those owning and operating within a business:
(1) Equal Access to Leave Under Employer’s Paid Leave Policies. Employer’s should treat requests for leave for a disability the same as they would any other request for leave as it pertains to the company’s existing paid leave policy. For example, if the employer requires a doctor’s note for non-disability related requests for leave, it can also require a doctor’s note where a disability motivates the leave. However, if the employer normally does not require a doctor’s statement, then it cannot require one only for disabled employees to obtain paid leave. Employers can require doctor's notes for all sick leave; the key is to apply policy uniformly.
(2) Unpaid Leave is a Reasonable Accommodation. If the employee’s paid leave and unpaid leave has exhausted, the employer must consider providing unpaid leave to the disabled employee as a reasonable accommodation if the employee needs it and the leave does not create an undue hardship for the employer. Remember, “undue hardship” is much, much more than inconvenience or increased costs. Employer may request information from a health care provider to elaborate on the time period required for leave.
(3) All Requests for Leave Must be Treated as a Request for a Reasonable Accommodation. Any time an employee requests leave because of a medical condition, the employer must analyze the request under the ADA and Family and Medical Leave Act.
(4) “Automatic Termination” Upon Expiration of Leave is Risky. The EEOC warns against blanket policies that call for immediate termination where the employee exhausts leave. Reasonable accommodations must be considered.
(5) “Automatic Termination” Following a Particular Length of Leave as a Reasonable Accommodation is Risky. The EEOC also warns against termination that follows leave as a reasonable accommodation where there is no explanation for why the leave cannot continue. Don't forget - the ADA requires an interactive process that involves a case-by-case assessment before any employment related decisions are made.
(6) Don’t Forget about Reassignment to a Vacant Position. The resource issues a reminder than an employer must, under the ADA, reassign an employee if their disability “prevents the employee from performing one or more essential functions of the current job, even with a reasonable accommodation, or because any accommodation in the current job would result in an undue hardship.” In other words, you should at least consider reassignment.
When is leave as a reasonable accommodation enough? How flexible does an employer need to be? These are questions for which there is no concrete answer. A case-by-case assessment is essential. I highly recommend vetting any decision in this regards with employment counsel to be sure that you have made every effort to comply with the ADA (and more importantly, avoid costly litigation). If you have questions on the ADA, the interactive process, or leave as a reasonable accommodation, please contact me.