On May 8, the Equal Employment Opportunity Commission published "Employer-Provided Leave and the Americans with Disabilities Act." Much of the guidance in that 11-page publication is not new. But it nevertheless should be useful to employers because of its expanded discussion of whether additional leave must be provided to an employee who already has exhausted other available leaves but still cannot return to work because of a disability.
The Americans with Disability Act (ADA) generally requires reasonable accommodation for an employee's disability unless the employer will suffer undue hardship. Reasonable accommodation can include leave of absence. That possible entitlement to ADA leave exists notwithstanding that other leave rights, not based on disability, are legion, at least in some jurisdictions.
So how should an employer respond when an employee exhausts other leave entitlements and then claims that, because of a disability, even more leave is needed before returning? The EEOC addresses this question by making four points.
1. Access to leave can never be discriminatory.
When an employee's request for disability-related leave falls under an existing policy, the employer must provide the disabled employee the same access to leave provided to similarly situated, nondisabled employees.
2. The employer must consider leave as a reasonable accommodation without regard to other leave policies.
Other policies (and other statutes) do not determine whether leave is required under the ADA. According to the EEOC, the very purpose of reasonable accommodation is "to require employers to change the way things are customarily done to enable employees with disabilities to work." As a result, providing unpaid leave will comply with the ADA's purpose whenever it enables an employee's return to work after the leave.
This has several implications. First, if a request for disability-related leave does not fall under an existing policy, the employer still must consider allowing it. Second, the employer also must consider allowing leave as a reasonable accommodation if the employee has exhausted leave available under other policies (or non-ADA laws). Third, the employer likewise must consider leave as a reasonable accommodation even if the employer otherwise does not offer leave as an employee benefit at all.
The above considerations thus mean that, as the EEOC explains, an employer can have a policy establishing a "maximum" amount of leave for employees only when the employer also makes clear that it will consider leave beyond that "maximum" as a reasonable accommodation to an employee's disability. Employers thus might question the value of having a "maximum" leave policy at all.
3. Additional leave does not have to be provided as a reasonable accommodation when it would cause undue hardship.
An employer never has to provide an accommodation that causes undue hardship. There are, however, no fixed, universally applicable criteria that show exactly when "hardship" becomes "undue." The EEOC thus suggests that employers can consider factors such as the following to determine whether undue hardship would result:
• amount and/or length of leave required;
• frequency of the leave;
• whether there is flexibility with the days of the leave;
• whether the dates of any intermittent leave is predictable;
• impact of the employee's absence on co-workers and on whether specific job duties would be performed appropriately; and
• impact on the employer's operations and ability to serve customers/clients (taking into account the size of the employer).
Employers also may find useful the following explanation from the EEOC publication:
"In many instances an employee (or the employee's doctor) can provide a definitive date on which the employee can return to work (for example, Oct. 1). In some instances, only an approximate date (for example, 'sometime during the end of September' or 'around Oct. 1') or range of dates (for example, 'between Sept. 1 and Sept. 30') can be provided. Sometimes, a projected return date or even a range of return dates may need to be modified in light of changed circumstances, such as where an employee's recovery from surgery takes longer than expected. None of these situations will necessarily result in undue hardship, but instead must be evaluated on a case-by-case basis. However, indefinite leave—meaning that an employee cannot say whether or when she will be able to return to work at all—will constitute an undue hardship, and so does not have to be provided as a reasonable accommodation."
4. The employer should use an "interactive process" to determine whether additional leave can be provided without undue hardship.
An "interactive process" is a dialogue between the employer and the employee and/or his health care providers to obtain information needed to determine the feasibility of a reasonable accommodation. The employer should use an "interactive process" whenever leave, or additional leave, is unavailable to the employee under an existing policy. The issue will be whether the requested leave can be provided without undue hardship.
The information needed by the employer will vary from situation to situation. The disability may or may not be obvious. Thus, in some situations, the employer may need additional information to confirm that the employee's condition is, in fact, a disability within the meaning of the ADA.
The EEOC advises, however, that most of the focus in the "interactive process" is likely to be on issues such as these:
• the specific reason(s) for leave;
• whether leave will be a block of time or intermittent; and
• when the need for leave will end.
With the employee's permission, an employer may obtain information from health care providers to confirm or elaborate on information from the employee. And as the EEOC explains, "Employers may also ask the health care provider to respond to questions designed to enable the employer to understand the need for leave, the amount and type of leave required, and whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave)."
Finally, one other, closely related point is salient. When an employer attempts an "interactive process," the employee must cooperate. If an employee's lack of cooperation precludes the "interactive process," that will not be deemed the fault of the employer.
Reprinted with permission from the September 28, 2016 edition of Corporate Counsel © 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 - firstname.lastname@example.org.