Yesterday, the Equal Employment Opportunity Commission (EEOC) released its long-awaited guidance regarding leave as an accommodation, “Employer-Provided Leave and the Americans with Disabilities Act.” The EEOC has not provided significant direction on leave as an accommodation since 2002, when it issued the broader report, “Enforcement Guidance Regarding Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (ADA).” Five years ago, the EEOC held a public meeting on leave of absence as an ADA accommodation, thus presenting hope that further guidance would be forthcoming. Such guidance was expected to be released in April 2012, but was then held back by the EEOC at the last minute. That, combined with court cases that can be at odds with EEOC interpretations left employers’ heads spinning at times. Uncertainty regarding how to manage a request for leave of absence as an ADA accommodation was in dire need of clarification. As a result, ReedGroup issued a white paper to assist employers in understanding the ADA’s leave as an accommodation requirement, bringing together the EEOC’s guidance and court cases in one comprehensive resource.
For fourteen years employers were primarily left with the EEOC’s Guidance from 2002 to gain insight into the EEOC’s enforcement perspective.
And now the wait is over. The EEOC’s Guidance marries together the EEOC’s position as set forth in various other guidance documents. It provides insight and examples into critical topics surrounding employers’ obligations regarding leave as an ADA accommodation, paid versus unpaid leave, reassignment, and job protection.
The Guidance still doesn’t answer the longstanding and thorny question of how much leave an employer must grant under the ADA – employers still must assess each request individually via the interactive process. But the Guidance does shed light on such topics as:
- the ADA documentation an employer can request from an employee’s provider (hint: this can help you with the interactive process);
- employers’ “100% healed” and “maximum leave” policies (hint: you must be willing to waive such policies under the ADA);
- and interactions with FMLA, state leave, and workers’ compensation.
Also notable are the multiple mentions and guidance on the employer’s undue hardship analysis: the EEOC repeatedly calls out undue hardship, which employers frequently forget to assess. The Guidance also confirms that indefinite leave will always be considered an undue hardship.
Employers should take note of the EEOC’s Guidance as it provides more tools for your leave of absence toolbox. Read on for some of the more significant highlights of the Guidance:
- Modifying employer policies: Employees with disabilities must be provided 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, whether paid or unpaid, the employee requesting the leave should be treated the same as an employee who requests leave for reasons unrelated to a disability.
- An employee’s leave request: As a general rule, an employee must request an accommodation, including leave. When an employee requests leave for a medical condition or an extension of leave already granted, the employer must treat the request as one for a reasonable accommodation under the ADA. This applies even if the employee isn’t specifically requesting ADA leave or an accommodation.
- Documentation: The Guidance outlines the employer’s ability to require documentation to confirm, or to elaborate upon, the employee’s accommodation request. This includes the ability to gather information regarding the need for leave, as well as how it will enable the employee to return to work, the length and type of leave required, and whether accommodations other than leave may be effective for the employee. If an employee is requesting a leave extension, employers can and should inquire even further of the employee’s provider.
- Interaction with FMLA, state law, workers’ compensation and employer’s leave program: If an employee’s leave request can be addressed by an employer’s leave program, the FMLA, state law, or the workers’ compensation program, the employer may provide leave under those programs. If the leave cannot, however, be granted under any other program, then an employer should promptly engage in an interactive process with the employee. This highlights the point that when an employee with a disability requests leave, the employer must simultaneously consider the ADA along with the FMLA and any other applicable leaves.
- Employer maximum leave and 100% healed policies: Employers, if you must continue these policies, proceed with caution! The Guidance recognizes that employers may have leave policies that establish the maximum amount of permitted leave, but the ADA may require waiving these policies as a reasonable accommodation to employees who require it because of a disability. An employer will violate the ADA if it requires an employee with a disability to have no medical restrictions, or be 100% healed or recovered before returning to work, assuming the employee can perform her job with or without reasonable accommodation. Similarly, it’s an ADA violation for an employer to claim an employee with medical restrictions poses a safety risk if it cannot show that the individual is a “direct threat” — an ADA standard for determining whether an employee’s disability poses a “significant risk of substantial harm” to self or to others.
- Notifications to employees: When employers communicate with employees who are nearing the end of leave provided under an employer’s leave program, employers can’t simply tell the employee that failure to return to work may result in termination. Instead, these notifications must inform employees that if additional unpaid leave is still needed, 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.
- Undue Hardship: In several parts of the guidance, the EEOC reminds readers that an employer can deny requests for leave when it can show that providing the accommodation would impose an undue hardship on its operations or finances. The Guidance offers details about an employer’s undue hardship analysis. An employer can request information from the health care provider to assist in an undue hardship determination. In assessing undue hardship on an initial request for leave as a reasonable accommodation, or a request for leave beyond that which was originally granted, the employer may take into account leave already taken. This may be pursuant to a workers’ compensation program, the FMLA (or similar state or local leave law), an employer’s leave program, or leave provided as a reasonable accommodation.
This Guidance promises to provide more clarity on some of the tricky issues that tend to plague employers and those in the leave of absence industry. It doesn’t wave a magic wand and make the issues suddenly straightforward and clear, but the Guidance, especially the examples incorporated, gives employers and third party administrators additional confidence in this area.