Even the best-intentioned and generous of employers whose leave policies allow for several months or even years of absence are sitting targets for the EEOC’s crusade against so-called “inflexible” leave policies. Over the past decade, a growing number of employers have been forced to defend against EEOC systemic discrimination claims alleging that such maximum leave policies violate the Americans With Disabilities Act (“ADA”).
Extended leaves of absences present a conundrum for employers. On the one hand, Congress mandates that covered employers provide up to 12 weeks of unpaid leave for eligible employees with serious health conditions under the Family Medical and Leave Act (“FMLA”). On the other hand, the EEOC takes the enforcement position that maximum leave policies generally violate the ADA even when they provide more time off than the FMLA’s mandated 12 weeks. The EEOC’s view is that any policy that provides employees with “X” months of leave (e.g., 6, 12 or even 18 months) violates the ADA unless the employer proactively considers reasonable accommodations for the employee, which may include a reassignment to another job or additional leave beyond “X” months. In other words, the EEOC puts the onus on the employer to engage, unsolicited, in the interactive accommodation process with each employee who is approaching the maximum “X” months of leave.
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