EEOC Provides ADA Guidance on Employer-Provided Leave

On May 9, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued a resource document addressing the trend of employer policies denying or unlawfully restricting the use of leave as a reasonable accommodation under the Americans with Disabilities Act (ADA). Though the document itself cannot be considered official guidance by the agency, since it was not voted on by the entire Commission, the resource still provides employers with valuable examples and tips on when and how to grant leave as a reasonable accommodation.
The ADA defines a reasonable accommodation as “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.” Under the ADA, even in cases where leave is not offered to other employees, an employer must provide leave or modify an existing leave policy as a reasonable accommodation when deemed necessary for a disability.
The EEOC’s release this week includes some key takeaways:

  1. Employers must provide employees with disabilities access to leave on the same basis as all other similarly-situated employees. If an employer receives a leave request related to a disability that falls within the employer’s existing leave policy, it should treat that employee the same as an employee who requests leave for unrelated disability reasons.
  2. Employers must consider providing unpaid leave to an employee with a disability as a reasonable accommodation (if it does not create an undue hardship for the employer). The EEOC describes that this would be the case even when the employer does not offer leave as an employee benefit, the employee is not eligible for leave under the policy, or the employee has already exhausted his or her employer-provided leave.   
  3. Employers must treat all requests for leave based on a medical condition as a request for a reasonable accommodation.
  4. Employers using a maximum leave policy (such as a policy that limits the number or length of unplanned absences in a 12-month period) may have to modify the policy as a reasonable accommodation for disability-related absences.

While the EEOC’s resource document provides some clarity for employers making leave decisions based on the ADA, many situations pertaining to reasonable accommodations and leave remain troublesome. When in doubt, contact your employment attorney to ensure that your company is in compliance with the ADA when assessing employee leave. 

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements.