EEOC Provides Resource Document Addressing Leave as a Reasonable Accommodation under the ADA
Topics: Discrimination, Harassment & Retaliation, Employee Leave
On May 9, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) released a new resource document, which addresses the rights of employees with disabilities who seek leave as a reasonable accommodation under the Americans with Disabilities Act (“ADA”).
As described by the agency’s press release, the resource document does not change existing policy, but instead provides examples of what conduct does and does not violate the ADA.
What exactly is a “reasonable accommodation?" In general, it is “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.”
Stated another way, employers can deviate from their existing policies in order to provide a way for an employee with a disability to maintain their employment. Such accommodation is reasonable if it does not create an undue hardship for the employer.
An “undue hardship” is where an accommodation would be operationally or financially prohibitive - as described in detail in the resource document. For example, some issues to consider when determining whether providing leave would result in an undue hardship include: (1) the amount and/or length of leave required, (2) the frequency of the leave, (3) whether the need for intermittent leave on specific dates is predictable or unpredictable, (4) the impact of the employee’s absence on coworkers, and whether specific job duties are being performed in the appropriate and timely manner, (5) the impact on the employer’s operations and its ability to serve customers/clients appropriately and in timely manner - taking into account the size of the employer.
Typically, leave is a reasonable accommodation when it enables an employee to return to work following the period of leave. Often, leave requests fall under an employer’s existing leave policies. However, the resource document expressly states that, “An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.”
As applied to an example in the resource document, “An employer’s leave policy does not cover employees until they have worked for six months. An employee who has worked for only three months requires four weeks of leave for treatment for a disability. Although the employee is ineligible for leave under the employer’s leave policy, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship.”
The resource document also provides additional guidance, such as tips for communicating with employees through the “interactive process”, a process that enables an employer to obtain relevant information to determine the feasibility of providing leave as a reasonable accommodation without causing an undue hardship.
In summary, unless an undue hardship exists, employers must provide leave to an employee who requires it as a reasonable accommodation. Determining whether an undue hardship exists is not always an easy decision, and must be considered in light of facts applicable to each workplace. Therefore, it’s important for employers to consult legal counsel when making these decisions, which must also comply with other legal requirements such as federal and state leave laws and California’s Fair Employment and Housing Act.
