Why it matters

In response to the increase in allegations of Americans with Disabilities Act (ADA) violations, the Equal Employment Opportunity Commission (EEOC) released a new resource document entitled "Employer-Provided Leave and the Americans with Disabilities Act." The overarching message from the guidance: absent an undue hardship, an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it.

To demonstrate the agency's intent to enforce ADA claims related to leave policies, a few days later the EEOC announced an $8.6 million deal with Lowe's retail stores to settle a lawsuit alleging the company engaged in disability discrimination based on inflexible leave policies. According to the agency, the national home improvement chain violated the ADA and engaged in a pattern and practice of discrimination against people with disabilities by failing to provide them with reasonable accommodations and firing them when their medical leave exceeded the company's 180-day maximum leave policy. Lowe's will also retain a consultant with ADA experience to review and revise company policies as appropriate, implement ADA training for supervisors and staff, develop a centralized tracking system for employee requests for accommodation, and maintain an accommodation log. "This settlement sends a clear message to employers that policies that limit the amount of leave may violate the ADA when they call for the automatic firing of employees with a disability after they reach a rigid, inflexible leave limit," EEOC General Counsel David Lopez said in a statement. "We hope that our efforts here will encourage employers to voluntarily comply with the ADA."

Detailed discussion

Citing an increase in the number of charges filed alleging disability discrimination in violation of the Americans with Disabilities Act (ADA), the Equal Employment Opportunity Commission (EEOC) published a new resource document for employers.

"Employer-Provided Leave and the Americans with Disabilities Act" is based on the agency's belief that "[a]n employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer."

This principle applies to policies that limit the amount of leave employees can take or require a worker to be 100 percent healed or able to work without restrictions before they can return to work, the EEOC explained.

The guidance addressed several issues regarding ADA leave, beginning with equal access to leave. "Employees with disabilities must be provided with access to leave on the same basis as all other similarly-situated employees," the EEOC wrote. "If an employer receives a request for leave for reasons related to a disability and the leave falls within the employer's existing leave policy, it should treat the employee requesting the leave the same as an employee who requests leave for reasons unrelated to disability."

Employers are permitted to have policies that require all employees to provide a doctor's note or other documentation to substantiate the need for leave, the agency noted, and reasonable accommodation does not require an employer to provide paid leave.

But granting leave as a reasonable accommodation requires employers to change the way things are customarily done to enable employees with disabilities to work, the guidance said. So even where an employer's leave policy does not cover employees until they have worked for six months or provide leave for those who work fewer than 30 hours per week, the employer must provide unpaid leave as a reasonable accommodation for a disabled employee in these circumstances unless it can show that providing the unpaid leave would cause undue hardship.

The interactive process requires communication between the employer and employee, the EEOC said, and generally the information discussed should include the specific reason(s) the employee needs leave, whether the leave will be a block of time or intermittent, and when the need for leave will end.

During leave, the interactive process may continue, the agency added, particularly if the leave request did not specify an exact return date or if the employee needs additional time off. Employers may not ask the employee to provide periodic updates if a fixed return date has been provided but "may reach out to an employee on extended leave to check on the employee's progress," the EEOC said.

Maximum leave policies are problematic with ADA compliance, the agency indicated, and while employers are allowed to have such policies, "they may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship."

For example, if an employer covered by the Family and Medical Leave Act (FMLA) grants employees a maximum of 12 weeks of leave per year and an employee uses the full 12 weeks for his/her disability but needs five additional weeks of leave, the employer must provide the time as a reasonable accommodation unless it can show that doing so will cause an undue hardship. "The Commission takes the position that compliance with the FMLA does not necessarily meet an employer's obligation under the ADA, and the fact that any additional leave exceeds what is permitted under the FMLA, by itself, is not sufficient to show undue hardship," the EEOC said.

Employers who use form letters may wish to modify them, the agency suggested, to let employees know that if they need additional unpaid leave as a reasonable accommodation for a disability, they should ask for it as soon as possible so that the employer can consider granting an extension without causing undue hardship.

The guidance also discussed return to work issues. One hundred percent healed policies violate the ADA if the employee can perform his/her job with or without reasonable accommodation unless the needed accommodation would cause an undue hardship, the EEOC said, and an employer will similarly run afoul of the statute with a policy requiring the employee be free from medical restrictions upon return unless the individual poses a "direct threat" of harm to him-/herself or others.

The agency recognized that reassignment may be necessary upon an employee's return to work (if the disability prevents him from performing one or more essential functions of the current job, for example) and that employers must place the worker in a vacant position for which he/she is qualified without requiring the employee to compete with other applicants for open positions.

Finally, the EEOC provided some insight into what constitutes an "undue hardship." The determination occurs on a case-by-case basis, with factors including the amount and/or length of leave required, the frequency of leave, whether any flexibility exists with respect to the days on which leave is taken, whether the need for intermittent leave on specific dates is predictable or unpredictable, the impact of the employee's absence on coworkers and whether specific job duties are being performed in an appropriate and timely manner, and the impact on the employer's operations and its ability to serve customers or clients appropriately and in a timely manner, which takes into account the size of the employer.

An employer may also take into account leave already taken, whether pursuant to a workers' compensation program, the FMLA or similar state or local leave law, an employer's leave program, or leave provided as a reasonable accommodation.

So if an employee has exhausted his FMLA leave but requires 15 additional days of leave due to his/her disability, the employer may consider the impact of the 12 weeks of FMLA leave already granted—and the additional impact on operations—to determine whether an undue hardship exists in granting three more weeks of leave, the agency said.

To read the EEOC's new guidance, click here.