On May 9, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued its guidance, “Employer-Provided Leave and the Americans with Disabilities Act” (“Guidance”). This Guidance addresses the rights of disabled employees who seek leave as a reasonable accommodation under the Americans with Disabilities Act of 1990 (“ADA”) and reaffirms the EEOC’s enforcement position with respect to an employer’s obligation to provide leave to such individuals.

In issuing this Guidance, the EEOC noted that 2015 presented a new high in the number of disability charges and a demonstrated trend that many charges involved employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation. Thus, the focus of the Guidance is to educate both employers and employees regarding the obligation to provide leave as a reasonable accommodation by addressing common questions raised with the EEOC on this topic.

Employee Leave Entitlement Is Extensive

Employers should be aware of a number of the Guidance’s key principles regarding access to leave as a reasonable accommodation:

  • Disabled employees who request leave under an employer’s policies must be provided access to such leave on the same basis and under the same conditions as other employees who request leave for non-disability-related reasons. 
  • Employers must consider providing unpaid leave to a disabled employee as a reasonable accommodation, even if doing so falls outside of the employer’s existing leave policies (e.g., FMLA, personal leave and non-FMLA medical leave), as long as doing so does not create an undue hardship for the employer. This obligation exists even where the employee is not eligible for or has already exhausted leave provided under those other policies. 
  • Employers are required to make exceptions to policies, including maximum leave policies and “no fault” attendance policies (setting a limit on the number of absences allowed), unless doing so will cause an undue hardship.

The Interactive Process

The Guidance emphasizes the employer’s obligation to engage in an individualized, interactive process with an employee once the employee notifies the employer of the need for leave due to a disability. As part of this process, employers may obtain information from the employee’s healthcare provider (with the employee’s permission) to confirm or to elaborate on information the employee has provided. In connection with employee requests to extend leave beyond that which was originally provided by the employer, the Guidance confirms that an employer may obtain medical documentation specifying the amount of the additional leave needed, the reasons for the additional leave and why the initial estimate of a return date proved inaccurate.

The Guidance elaborates on the form of communication used by an employer in the interactive process and cautions against using “form letters” that instruct employees that they must return to work by a certain date or face discipline or termination. The EEOC recommends that employers modify these letters to inform employees that if the employee needs additional unpaid leave as a reasonable accommodation for a disability, the employee should notify the employer, which will then consider the request.

Interplay of Leave with Other Accommodations

The Guidance emphasizes the importance of coordinating the employer’s response to employee leave requests with requests for other forms of accommodation (such as adjusted schedule, job responsibilities or work station) that often accompany an employee’s return to work after leave.

Notably, the Guidance reminds employers that they generally may not require a disabled employee to return to work without any medical restrictions (e.g., 100-percent fit for duty) if the employee can perform his/her job with or without a reasonable accommodation. Exceptions to this general rule are limited to only those instances where providing the other requested accommodations constitutes an undue hardship or where the employer demonstrates that the employee’s return to work poses a significant risk of substantial harm to himself or others that cannot be eliminated with a reasonable accommodation.

Undue Hardship

The EEOC affirms that employers may deny leave requests that constitute an undue hardship, such as requests for indefinite leave. However, the Guidance does not provide any specific advice on how an employer should evaluate the potential undue hardship associated with leave requests accompanied by an approximate return-to-work date, range of return-to-work dates or a series of leave extensions requests. The EEOC merely affirms the obligation to evaluate those requests on an individualized, case-by-case basis.

However, the Guidance spends significant time discussing an employer’s obligation to consider reassignment to a vacant position for which an employee is qualified as a reasonable accommodation. The EEOC highlights, in particular, the situation where an employer determines that it cannot continue to hold an employee’s position and replaces that employee’s position through an internal promotion. In such instance, the EEOC takes the position that the employer must evaluate whether the employee on leave is qualified for the now-vacant position of the promoted employee and, if so, must consider whether it may reasonably hold that other position open until the employee returns from leave.

What This Guidance Means for Employers

In many respects, this Guidance reaffirms the EEOC’s enforcement position on employee leave as a reasonable accommodation. For a number of years, the EEOC has focused its enforcement efforts on employer maximum leave policies and policies requiring employees to return to work without medical restrictions. The issuance of this Guidance gives another indication that these issues remain a priority for the EEOC.

Employers should review their current leave and benefits policies and practices, including those aspects of leave administration outsourced to third-party vendors, to ensure that they do not run afoul of the EEOC’s enforcement position set forth in this Guidance. Employers should also be aware of the EEOC’s emphasis on individualized assessment and should not rely on form communications and responses that do not take into account the specific circumstances of an employee’s leave request.