“An employer must [always] consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it” according to a resource document issued by the U.S. Equal Employment Opportunity Commission (“EEOC”).
Please read the above statement again.
According to the EEOC, an employer must always treat a request for leave as a request for a reasonable accommodation under the Americans with Disabilities Act (“ADA”). The EEOC “enforces Title I of the [ADA]. The ADA prohibits discrimination on the basis of disability in employment and requires that covered employers (employers with 15 or more employees) provide reasonable accommodations to applicants and employees with disabilities that require such accommodations due to their disabilities.”
“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.” As succinctly explained by the EEOC, “[t]he 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.”
According to the EEOC, it “continues to receive charges indicating that some employers may be unaware of Commission positions about leave and the ADA.” As a result, the EEOC issued a resource document on May 9, 2016, seeking to “provide general information to employers and employees regarding when and how leave must be granted for reasons related to an employee’s disability in order to promote voluntary compliance with the ADA.”
As explained above, the resource document clarifies that an employer must always consider a request for leave as a request for a reasonable accommodation under the ADA, so long as it does not create an undue hardship. This is true even when:
- The employer does not offer leave as an employee benefit;
- The employee is not eligible for leave under the employer’s policy; and/or
- The employee has exhausted the leave the employer provides as a benefit (including leave exhausted under a workers’ compensation program, or the FMLA or similar state or local laws).
In addition to clarifying an employer’s obligation to consider leave under the ADA, the resource document also provides guidance regarding a number of other leave issues:
- Equal access to leave under an employer’s leave policy
- Communication with employees regarding leave requests
- Maximum leave policies
- 100% healed policies
- The requirement to consider reassignment of an employee to a vacant position
To read the resource document, please click here.
As a result of the information contained in the resource document, it is strongly recommended that employers immediately (1) modify policies that limit the amount of leave employees can take when an employee needs additional leave as a reasonable accommodation; (2) modify policies that require employees on extended leave to be 100 percent healed or able to work without restrictions; and (3) consider reassignment as an option for employees with disabilities who cannot return to their jobs following leave.
In addition, employers that utilize “form letters” to communicate with employees who are nearing the end of leave under an employer’s leave program should immediately modify their form letters “to let employees know that if an employee needs additional unpaid leave as a reasonable accommodation for a disability, the employee should ask for it as soon as possible so that the employer may consider whether it can grant an extension without causing undue hardship.”
Authors: Matthew John Markling and Patrick Vrobel
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.