Seyfarth Synopsis: The EEOC recently issued “new” guidance for addressing leave as a reasonable accommodation. Employers must remember to consider unpaid leave as an accommodation, when appropriate, even if an employee would not otherwise be entitled to a leave of absence.

Recently, the EEOC published “new” guidelines about the rights of employees seeking leave as a reasonable accommodation under the Americans with Disabilities Act (“ADA”), “Employer-Provided Leave and the Americans with Disabilities Act.” The publication is intended to guide employers about when and how leave must be granted “to promote voluntary compliance with the ADA.” While essentially reiterating the EEOC’s long established positions on many facets of leave as an accommodation, the guidance specifically highlights several “trends” observed in recent ADA charges and discusses how the EEOC views such practices.

What’s on the EEOC’s radar?

  • Maximum leave policies — policies limiting the amount of leave an employee can take
  • “100 percent healed” policies — policies that do not allow employees to return to work if they have ongoing medical restrictions
  • Policies that do not consider reassignment as a potential accommodation

At its core, the guidance probably does not tell you anything you did not already know – ADA accommodations are incredibly fact-intensive and employers must engage in the interactive process, address an employee’s needs on a case-by-case basis, and unpaid leave as a possible accommodation.

You have also probably heard that, in the world of the ADA, some rules (aka, policies) are meant to be broken. But just in case the message has not quite sunk in, the EEOC makes their case quite clear: “the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work.” The guidance also provides examples of how the EEOC views employers’ obligations under various scenarios.

So before you go pointing to Part IV, Section 2.6, subpart (b) of your Employee Handbook and denying an employee’s accommodation request, be sure to consider the following tips from the EEOC.

  • Unpaid Leave. Employers MUST consider unpaid leave as a reasonable accommodation, “if the employee requires it,” and so long as doing so does not create an undue hardship. The EEOC cautions that it does not matter if an employee already exhausted the leave available under company policy or the FMLA, or if the employee is not otherwise eligible for leave. So, for example, if your leave policy only covers employees who work a minimum amount of hours per week or who have worked for a minimum duration, you still must consider whether unpaid leave is a reasonable accommodation, notwithstanding the employee’s ineligibility. Per the EEOC, “[t]he ADA requires that employers make exceptions to their policies, including leave policies, in order to provide a reasonable accommodation.”
  • “Maximum leave policies” may be permissible, but employers must grant exceptions when necessary as an accommodation. For instance, an employer who grants its employees five absences per year before being subjected to discipline may need to adjust its policy — as applied to absences for a disability — as a reasonable accommodation.
  • “100% healed policies” may easily run afoul of the ADA. Employers cannot prohibit employees from returning to work merely because they have ongoing medical restrictions. In fact, the EEOC makes its position extremely clear: “An employer will violate the ADA if it requires an employee with a disability to have no medical restrictions” before returning to work where the employee can perform her job with or without a reasonable accommodation, unless undue hardship or a direct threat would result. In short, where employees seek to return from leave with ongoing medical restrictions, employers must engage in the interactive process and determine whether those restrictions can be accommodated.
  • Reassignment is a potential accommodation. The EEOC’s position is that, if reassignment is required, an employer must (1) place the employee in a vacant position for which he is qualified; and (2) cannot require that the employee compete with other applicants for the open position. (Note: this does not include promotions or uniform seniority systems.) This position is not new for the EEOC, but now, there is no mistaking its stance.
  • Undue hardship remains a defense to providing an accommodation. The EEOC lists several factors to consider in assessing whether an accommodation would result in an undue hardship, including (i) the amount and/or length of leave required; (ii) the frequency of the leave; (iii) whether there is any flexibility as to the days the leave is taken; (iv) whether the need for intermittent leave is predictable or unpredictable; (v) the impact of the employee’s absence on coworkers and whether specific job duties are being performed in an appropriate and timely manner; and (vi) the impact on a company’s operations and its ability to serve customers/clients (which also takes into consideration a company’s size). Generally, the guidance is not clear on when these factors may result in an undue hardship. But, the EEOC reiterated that indefinite leave — an inability to say when or if an employee will return to work at all — IS an undue hardship and is NOT a reasonable accommodation.

Addressing requests for accommodation are challenging, particularly when they involve leaves of absence. And though these guidelines are not binding, they provide helpful tools when engaging in the interactive process and may help avoid landing on the EEOC’s radar.