On June 8, 2011, the Equal Employment Opportunity Commission (EEOC) convened a public hearing to hear testimony of representatives from the EEOC, lawyers representing employers and advocates for persons with disabilities on the issue of providing leave as an accommodation under the Americans with Disabilities Act (ADA). The hearing comes in the wake of the EEOC’s highly publicized litigation against employers with leave policies that provide for the automatic termination of employees who have been absent for a certain period of time. Most notably, Sears Roebuck & Company settled an ADA class action with the EEOC for $6.2 million despite Sears’ arguably generous leave policy that provided that employees could be out for twelve months before being terminated.

The EEOC attorneys testifying at the hearing (Assistant Legal Counsel Christopher Kuczynski and Regional Attorney John Hendrickson) explained that the EEOC’s concern with the type of inflexible leave policy like that administered by Sears is that it does not require an individualized assessment of the employee’s need for a continuing reasonable accommodation at the conclusion of the leave period, whether that be additional leave or some other accommodation. Mr. Kuczynski emphasized, however, that the EEOC has never said that a uniformly applied leave policy, including a no-fault attendance policy, automatically violates the ADA. The EEOC does expect that an employer will modify its no-fault leave policy if an employee needs additional leave as a reasonable accommodation. The EEOC’s position is that if an employee who is on leave requests additional leave beyond that which was originally requested, the employer should review the particular circumstances to determine whether continuation of leave presents an undue hardship.

Although the burden of proving an undue hardship is high, the EEOC has recognized that providing leave can cause an undue hardship for employers in certain circumstances, such as when an employee’s absences occur with some frequency, over an extended period of time, and often without advance notice. Mr. Kuczynski pointed to a 2008 EEOC technical assistance document on performance and conduct standards, in which the EEOC allowed for the possibility of a leave causing an undue hardship on an employer’s business. For example, leave may impose an undue hardship when it causes an employer to be unable to meet its work goals or to serve its customers adequately, when an employer incurs significant additional costs because other employees need to work overtime or the employer needs to hire temporary workers, or when other employees have to pick up the absent employee’s duties and are less able to perform their own work.

Addressing the thorny situation in which an employee who requires leave as a reasonable accommodation is unable to provide a definitive date on which he or she can return to work, Mr. Kuczynski noted that the EEOC does recognize that truly indefinite leave may result in undue hardship. Indefinite leave is narrowly defined to mean that an employee is not able to say if or when he or she will be able to return to work. The EEOC distinguishes from indefinite leave a situation in which an employee is not able to provide a fixed date of return, and can give only an approximate date of return or a range of possible return dates. In the latter case, leave may be a reasonable accommodation.  Citing the EEOC’s guidance on reasonable accommodation, Mr. Kuczynski explained that, when an employee is not able to provide an exact return date at the time that he or she requests leave, the employer may require the employee to provide periodic updates on his or her medical condition and possible date of return.  Upon receiving each update, the employer may reevaluate whether continued leave constitutes an undue hardship.  What the EEOC views as most critical is regular communication during the leave.

The EEOC commissioners commented at the June 8 public hearing that the EEOC will issue new guidance documents under the ADA to address the issue of leave as a reasonable accommodation. No doubt these documents will be welcomed by employers, who have been struggling to balance the need to run their businesses efficiently with what appeared to be the EEOC’s disdain for inflexible leave policies.