The Equal Employment Opportunity Commission (“EEOC”) has issued a new Resource Document (“Resource”) to reinforce employers’ obligations under the Americans with Disabilities Act (“ADA”) to provide leave as a reasonable accommodation to employees with disabilities.
The Resource is not a new policy. It simply consolidates the EEOC’s existing views in response to what they consider “the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation.”
Equal Access to Leave…and Beyond
The Resource starts by reminding us that employees with disabilities must have the same access to leave as all other similarly situated employees. The Resource explains, for example, that if an employer allows paid leave without requiring explanation for the absence, a disabled employee must be allowed the same right without either having to provide a medical reason or being relegated to using a particular sick leave benefit.
The Resource then addresses leave as an accommodation, noting that the “purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work.” Thus, employers must consider an unpaid leave of absence as a possible reasonable accommodation even when:
– the employer does not offer leave as an employee benefit;
– the employee is not eligible for leave under the employer’s policy; or
– the employee has exhausted the leave the employer provides as a benefit (including legally mandated leave such as the Family and Medical Leave Act or similar leaves under state law).
Of course, as with all accommodations, leave can be denied if providing the leave would impose an undue hardship.
A Request For Leave Must be Treated as a Request for Reasonable Accommodation
The Resource states that a request for leave due to a medical condition must be treated as a request for a reasonable accommodation, which therefore requires initiation of the interactive process required by the EEOC.
For this reason, employers must be wary of using one-size-fits-all approaches to leaves. For example,
– While employers may establish maximum durations for leaves, a leave beyond the stated maximum may have to be granted as an accommodation for an employee with a disability. In other words, this may be one of those times when the employer must ignore its own policy in order to accommodate a disability.
– The use of “form letters” telling employees they will be fired if they do not return by a specified date is problematic. Instead, the Resource states that such letters should inform employees that if more time off is needed as an accommodation for a disability, they must notify the employer as soon as possible.
– Preventing employees from returning to work unless they have no medical restrictions (often referred to as “100% healed” policies) is not permissible. Instead, the relevant question is whether the employee can return to work with a reasonable accommodation.
– An employer may not deny a return to work on the grounds that the employee’s medical restrictions pose a safety risk unless the employer can prove that the employee poses a “direct threat”, defined as “a significant risk of substantial harm to self or to others that cannot be eliminated or diminished with a reasonable accommodation.”
Conducting the Interactive Process.
As noted above, the EEOC asserts that a request for medical leave is by definition a request for accommodation. If the request falls within the confines of FMLA, workers comp or some other applicable law, leave may be granted under those requirements. Otherwise, the employer should undertake what the EEOC’s calls the “interactive process”, a collaborative inquiry where the employers obtains input from the employee, the employee’s health care providers and other relevant contributors to determine whether and to what extent a leave or other accommodation might be needed.
In most cases, the interactive process regarding a leave request should zero in on the following information:
– Why the accommodation is needed (e.g. surgery, physical therapy, counseling);
– Whether the time off will be continuous or on an intermittent basis; and
– When will the leave end.
In most cases, this information will be sufficient to permit the employer to make an appropriate decision on an accommodation request.
The Right to Return to Work
The Resource makes clear that the right to a leave includes the right to return to work. However, there may be times when an employee’s need for a leave (or the need for a leave to continue) presents an undue hardship requiring that the employee’s job be filled. The Resource is not terribly helpful on this point, saying only that if the job is filled via promotion, the employer might conclude that the employee on leave is qualified for the position that the newly-promoted individual vacated, and that holding that job open for the employee on leave would be an appropriate accommodation.
However, the Resource did not address the more common situation where the employer must fill the vacant job with someone on the outside such that there is no other job to hold open for the employee on leave. It seems likely that in such cases, the EEOC would still find that a continuing obligation to accommodate exists and that the employer must continue to keep the disabled employee on a leave for a reasonable period to see if a suitable vacancy might exist if and when the employee is cleared to return.
The Resource also reaffirmed the critical right of employers to decide that indefinite leaves (those where an employee cannot say whether or when they will be able to return to work at all) constitute an undue hardship and do not have to be accommodated.
Bottom Line:
Although the Resource does not establish new law or policy, the examples that it contains are instructive for employers, and the consolidation of agency policy gives employers a good starting point in evaluating whether a leave of absence might be a required accommodation in any particular situation.