The EEOC’s latest guidance on leave and the ADA makes clear that the Commission isn’t backing down from its position that employers must consider leave as a reasonable accommodation, a topic we’ve discussed in prior blog posts. But with a relatively undefined standard, how do employers know where the line is between reasonably accommodating an employee by granting leave and refusing to because of undue hardship? The EEOC’s Guidance leaves more questions than answers.

  1. Requests for leave aren’t always clear.

The burden is on the employee to inform his or her employer that an accommodation is needed, but such requests aren’t always clearly packaged as a request for reasonable accommodation under the ADA. If you aren’t sure whether your employee has actually requested leave as a reasonable accommodation, ask questions and start the interactive process.

The Guidance reminds employers that when an employee requests leave for a medical condition, the employer must treat it as a request for reasonable accommodation under the ADA and engage in the interactive process. The EEOC suggests that employers use the interactive process to determine (1) the specific reason(s) for the leave; (2) whether the leave will be a set block of time or sporadic throughout a calendar year; and (3) when the need for leave will end. The Guidance also confirms that employers can contact the employee’s health care provider to seek clarity on the employee’s needs for reasonable accommodation.

  1. You may be required to grant unpaid leave to an employee who isn’t otherwise eligible for leave.

If the employee needs leave as a reasonable accommodation, don’t dismiss the request just because he or she isn’t otherwise eligible under the FMLA or the company’s leave policy. The EEOC makes its position clear: even if an employee is ineligible for leave under any policy, the employer must provide unpaid leave as a reasonable accommodation unless it can show undue hardship.

  1. Maximum leave policies don’t apply.

Just because you have a leave policy with a “maximum” amount of leave doesn’t mean that you can enforce that “maximum” when an employee requests leave as a reasonable accommodation. The ADA requires employers to make exceptions to certain policies as reasonable accommodations, and the Guidance reinforces this requirement.

The EEOC warns that when an employee runs up against a maximum leave policy, employers should stay away from form letters that instruct an employee to return to work by a certain date or risk termination. Instead, the EEOC urges employers to contact the employee and inquire whether or not the employee needs additional unpaid leave as a reasonable accommodation.

  1. Claiming undue hardship is tricky.

That an employee’s leave of absence has already exceeded the FMLA entitlement doesn’t establish undue hardship. Similarly, leave that exceeds the employer’s maximum leave policy doesn’t satisfy the ADA undue hardship standard. On the other hand, the EEOC makes clear that indefinite leave—where the employee cannot say when, if ever, he or she will be able to return to work—does constitute undue hardship.

But what about an employee’s request for leave somewhere between a few days or a week to indefinite leave? In that case, the EEOC suggests that employers consider a variety of factors when determining undue hardship:

  • The amount of leave required;
  • The frequency of the leave;
  • Whether the employee has any flexibility with days on which leave is taken;
  • Whether the need for leave is predictable or unpredictable;
  • The impact of the employee’s leave on coworkers; and
  • The impact on the employer’s operations and ability to serve customers and clients.

Aside from these considerations, the EEOC doesn’t offer much guidance on how to determine whether a request for leave will cause undue hardship. Instead, the EEOC simply says undue hardship must be evaluated on a “case-by-case” basis, which doesn’t leave employers who claim undue hardship with much comfort.

Although the EEOC’s new guidance doesn’t change the EEOC’s position on leave as a reasonable accommodation or offer clear guidance for employers on when to permit leave or claim undue hardship, it signals the EEOC’s continued focus on this issue. An employer should take extra care when considering leave as a reasonable accommodation and ensure it can back-up a claim of undue hardship in the event it denies an employee’s requested leave.