On May 9, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) released a resource document titled, “Employer-Provided Leave and the Americans with Disabilities Act,” which offers insights into when employers should provide leave as an accommodation under the Americans with Disabilities Act (ADA). As a refresher, the ADA requires covered employers to provide reasonable accommodations to applicants and employees with disabilities who require such accommodations due to their disabilities. Under the ADA, employers would not be obligated to provide a “reasonable accommodation” if it would cause “undue hardship” to the employer.

Employers should note that EEOC resource documents are developed by the EEOC’s staff and approved by its Chair (in this case, Chairwoman Jenny Yang). The entire Commission does not vote on resource documents, and the agency does not seek public input on resource documents. Resource documents, therefore, do not carry the weight of official guidance issued by the agency. Although it may be helpful to know the agency’s various positions on leave as interpreted and described by the EEOC staff who wrote this resource document, the document itself does not carry much, if any, actual precedential value.

The document does not attempt to provide guidance on the top three questions that employers wrestle with all the time, namely:

  1. How much extra leave is enough? Employers often wonder at what point in time they can draw a line and say that a second, third, or fourth extension of otherwise unauthorized, unpaid leave is enough. The EEOC’s definition of “undue hardship” is so expansive that it’s frequently hard for employers to say that it would truly be an undue hardship to extend unpaid leave another 10, 15, or 30 days. This circumstance of serial requests for unpaid block leave is increasingly common. And although it almost always presents a continued operational inefficiency that can’t reasonably be sustained from a business perspective, it may not qualify as an “undue hardship.” This is especially true when the leave requests have a seeming end date (in other words, the requests are not identified by the employee as requests for indefinite leave). Simply put, employers frequently have to draw the line somewhere, and the new resource document provides no guidance on this important question.
  2. What about other accommodations? Employers are not generally required to grant an employee’s specific requested accommodation. They are, however, required to engage in an interactive process about the requested accommodation and perhaps identify other equally effective but less burdensome accommodations. The resource document makes this issue seem black and white: if additional leave is requested and denied, it’s an ADA violation.  But it is rarely that clear in “real life.” Discussions about the relative reasonableness of various options for accommodations are generally a gray area.
  3. What about health care and other benefits? An increasing number of workers are taking extended periods of otherwise unauthorized, block unpaid leave. When this happens, employers wonder what they should do about the employee’s benefits. The Family and Medical Leave Act (FMLA) and, to some extent, the Consolidated Omnibus Budget Reconciliation Act (COBRA) in addition to an employer’s benefit plan documents, may provide answers. The new resource document suggests that employers should consider providing employees with benefits that are not legally required or typically permitted as a matter of law, plan, policy, or practice. Does that high standard apply to benefit continuation too? The resource document doesn’t address this question.

Although the resource document is not helpful with these common problem areas, it is helpful in providing guidance in one area about an employer’s right to push back on employees’ requests for extra leave. That area has to do with requesting medical information from the employee’s healthcare provider. The resource document states that employers may ask employees for this information as part of the interactive process when evaluating the reasonableness of the request for otherwise unauthorized leave. 

Key Takeaways

With an increasing number of workers qualifying as “disabled” as that term is broadly defined by the ADA, and with “undue hardship” more narrowly defined in such a way that it is generally unavailable to prevent leave abuse, it’s becoming increasingly difficult to manage the employment of a disabled worker who requests a leave of absence that would otherwise be unauthorized by law, policy, or practice. The new resource document does not provide much help with regard to employers’ common questions about leave. However, it does offer useful, positive guidance in the area of requests for medical information.