In May 2016, the Equal Employment Opportunity Commission (“EEOC”) published “Employer-Provided Leave and the Americans with Disabilities Act” The EEOC published the guidance as it observed a “troubling trend:” employment policies that deny or restrict leave as a reasonable accommodation for employees with disabilities. It has been a year since this guidance was published and it is worth revisiting this issue.

The issue arises as follows. An Employer determines whether an employee is eligible for or has exhausted her Family Medical Leave Act (“FMLA”) leave. If the employee is ineligible or has exhausted her FMLA leave, the employer may deny the employee’s request for leave without consideration of the requirements of the ADA.

The ADA requires, among other things, that employers provide “reasonable accommodations” to employees with disabilities if doing so will allow the employees to perform their essential job functions. An exception exists if the accommodation would cause the employer “undue hardship.”

For many years, the EEOC has reminded employers who are covered by the ADA (those with 15 or more employees) that granting an unpaid leave of absence, or granting additional time off above and beyond that available under the Family and Medical Leave Act (FMLA) or the employer’s leave policies, may be a “reasonable accommodation that the employer should consider granting.”

Employer takeaways:

  • The ADA applies on the first day of employment (if the employer has 15 or more employees) regardless of the hours an employee has worked. Thus, an employer may have to provide leave even if the employee is not otherwise entitled to it.
  • An employer may request medical information in order to better understand the employee’s need for leave and the expected date of return. However, the employer should not reach out to the employee’s healthcare provider without their permission.
  • It should be noted that an indefinite leave constitutes a per se undue hardship, and is therefore never required as a reasonable accommodation. Employers should engage in the good faith, interactive process to determine if the employee is seeking “indefinite” leave or rather the date of return is somewhat unclear.
  • Human Resources and employment attorneys should familiarize themselves with Employer-Provided Leave and the Americans with Disabilities Act.”
  • If you’re asking yourself “how much leave is enough or too much,” please feel free to contact one of our employment attorneys for guidance as the EEOC’s publication does not provide bright-line rules.