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New EEOC Guidance: Employer-Provided Leave and the Americans with Disabilities Act.

Last month the EEOC issued guidance entitled “Employer-Provided Leave and the Americans with Disabilities Act.”  The EEOC was motivated to issue guidance on this topic due to an increase in disability discrimination charges that include claims that an employer has failed to provide a reasonable accommodation by denying the employee’s request for leave.

There are two common scenarios where leave as a reasonable accommodation generally apply: (1) an employee has exhausted his or her FMLA leave entitlement for the year but still needs additional time off before returning to work; or (2) employer policies put a cap on the maximum amount of leave the employer will provide to an employee.

A reasonable accommodation is, generally, “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”  29 C.F.R. §1630.2.  The purpose of the EEOC’s new guidance in this area is to provide information to employees and employers regarding when and how leave must be granted to reasons related to an employee’s disability.

Here are a few significant take-aways from the guidance:

Equal Access to Leave Under an Employer’s Leave Policy.

Employees with disabilities must be provided with access to leave on the same basis as all other similarly-situated employees.  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, the employer must treat the employee’s request the same as request made by a non-disabled employee.

Granting Leave as a Reasonable Accommodation.

An employer must consider providing 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.  This is the case even when the employer does not offer leave as an employee benefit, the employee is not eligible for leave under the employer’s policies, or the employee has already exhausted the leave provided by the employer (including leave exhausted under the FMLA or under a workers’ compensation program).  Note, however, that the employer is not required to provide paid leave.

Maximum Leave Policies.

Employers are permitted to have leave policies that limit the maximum amount of leave it will provide.  Generally, employees with disabilities are not exempt from these policies.  However, an employer may be required to modify its maximum leave policy to accommodate absences related to a disability.

Return to Work and Reassignment.

An employer violates the ADA when it requires an employee with a disability to have no medical restrictions (often referred to as a “100% healed or recovered” policy) if the employee can perform his or her job with or without a reasonable accommodation.  If an employee returns to work with restrictions from his doctor, the employer should engage in the interactive process with the employee and his doctor to determine what accommodations the employee may need.  In many situations, reassignment may be a reasonable accommodation if the employee is not able to perform his or her current job even with an accommodation.  Note that it is the EEOC’s stance that if reassignment is necessary, the employer should place the employee in an open position for which he is qualified without requiring the employee to compete with other applicants.

The complete publication can be found at https://www.eeoc.gov/eeoc/publications/ada-leave.cfm

Image courtesy of Jason P. Cleveland.