• TOP TIP: What the EEOC Thinks about Leave and the ADA
  • July 26, 2016
  • Law Firm: - Office
  • Managing employees’ health-related leaves in compliance with the Americans with Disabilities Act poses challenges for employers. The Equal Employment Opportunity Commission has issued a resource document, “Employer-Provided Leave and the Americans with Disabilities Act,” that seeks to educate and provide guidance to employers and employees about leave as a reasonable accommodation.

    The more significant points from the document are as follows:
    • Employees with disabilities must be provided access to leave, both paid and unpaid, on the same basis as all other non-disabled employees.
    • Beyond its normal leave policies, the employer must consider providing additional unpaid leave as an accommodation, as long as it does not constitute an undue hardship on its operations or finances.
    • Once employees have requested leave or additional leave as an accommodation, employers should engage in the interactive process to obtain relevant information as to the feasibility of providing such leave without undue hardship. Communications should continue during the leave and prior to the employee’s return to work.
    • Exceptions to maximum leave policies (e.g. 12-week cap on extended leave, or maximum of 5 absences a year) must be considered as a reasonable accommodation.
    • Employers using a third-party to manage leave requests must ensure that they are fully aware of any information provided to the third-party by the employee.
    • Employers may not require employees to be 100% healed or recovered before returning to work.
    • If an employee is unable to perform the essential functions of his original job because of disability, the employer must provide reassignment to an open position for which the employee is qualified, without requiring the employee to compete for the position. The employer is not required to promote the employee. In addition, the employee is not entitled to reassignment if it would violate a uniformly-applied seniority system.
    • In determining if the leave would pose an undue hardship, the following factors may be taken into account:
      • the amount and/or length of leave (which can include prior leaves taken);
      • the frequency of the leave;
      • whether there is any flexibility as to when the leave may be taken;
      • whether the leave is predictable or not;
      • the impact of the absences on co-workers and whether specific job duties are being accomplished in an appropriate and timely manner; and
      • the impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner.
    • The employer should hold the employee’s job open during the leave, unless that constitutes an undue hardship, in which case it should consider alternatives, such as vacant positions, that would enable the employee to return to work at the end of leave.
    It is worth noting that the EEOC continues to acknowledge that a request for indefinite leave is an undue hardship, and therefore need not be granted.

    The document provides a useful summary of the EEOC’s position on various leave-related issues, which employers should keep in mind as they deal with employee medical leave requests.