On May 9, 2016, the Equal Employment Opportunity Commission (EEOC) issued a resource document addressing the rights of employees with disabilities who seek leave as a reasonable accommodation under the Americans with Disabilities Act of 1990 (ADA). This document consolidates existing guidance by the EEOC on the ADA and leaves of absences regarding, among other things, leave as a reasonable accommodation, including the interactive process and policies on leave, reinstatement and reassignment.

The content of the publication generally represents no break from EEOC’s existing positions. However, the fact that the EEOC issued guidance dealing specifically with the concept of leave as an accommodation sheds light on the priority it places on leave issues, which one EEOC commissioner has called “some of the toughest situations for employers and employees to deal with in our workplaces.”

The EEOC interprets the purpose of the ADA’s reasonable accommodation obligation to require employers to change their customary practices to enable employees with disabilities to work. A request for leave due to a medical condition must be treated as a request for a reasonable accommodation whereby the employer must promptly engage the employee in the interactive process. An employer may have to provide unpaid leave to an employee with a disability as a reasonable accommodation even where the employer does not customarily offer leave as a benefit or where the employee has exhausted or otherwise is not eligible for leave under existing policies. 

Not surprisingly, the resource document explains that an employee who informs her employer that a disability may cause periodic unplanned absences from work is considered to have requested a reasonable accommodation, which would trigger the employer’s duty to engage in the interactive process. The resource document also provides some insight into what the EEOC considers an undue hardship for purposes of analyzing whether an accommodation is reasonable:

  • A leave of absence that exceeds what is permitted under the Family and Medical Leave Act (FMLA), by itself, is not sufficient to show undue hardship.
  • Indefinite leave, meaning that an employee or her doctor cannot say whether or when she will be able to return to work, does constitute an undue hardship.
  • If reassignment is necessary because undue hardship precludes providing an accommodation with a current job, the employer must place the employee in a vacant position for which he is qualified without requiring the employee to compete with others unless another employee is entitled to the position under a uniformly applied seniority system.

The resource document further highlights the EEOC’s view that an employer may not wash its hands of responsibility for administering leaves for employees simply by relying on a third-party administrator. Other points emphasized in the guidance include:

  • An employer (which would include its third-party administrator) with an employee on leave with a fixed return date may not ask the employee to provide periodic updates, although it may reach out to an employee on an extended leave to check on the employee’s progress.
  • Employers who use form letters or third-party administrators to communicate with employees who are nearing the end of a leave should advise (or ensure that the third-party administrator so advises) that if the employee needs additional unpaid leave as a reasonable accommodation for a disability, the employee should seek it as soon as possible so that the employer may then consider it.
  • Employers who handle leave requests separately from requests for reasonable accommodations (e.g., a third-party administrator v. the HR department) should ensure nevertheless that the lines of communication between the responsible entities or departments are open to ensure consistency and compliance with the duty to engage in the interactive process.

Disability charges filed with the EEOC reached a new high in fiscal year 2015. The EEOC is certainly mindful of employers’ compliance with the ADA. Employers may want to scrutinize their own leave and reasonable accommodation processes, as well as those of their third-party leave administrators.