EEOC Issues Guidelines on Leave As Accommodation under the ADA

On May 9, 2016, the Equal Employment Opportunity Commission (EEOC) issued a new resource document entitled “Employer-Provided Leave and the Americans with Disabilities Act.” The document is intended to provide guidance on issues relating to leaves of absence as a potential reasonable accommodation for employees with disabilities under the Americans With Disabilities Act (ADA).

In an accompanying statement, the EEOC noted that disability charges filed with the agency increased over six percent as compared to fiscal year 2014, setting a new record. In particular, the EEOC discovered that many of these charges have been predicated on employment policies that unlawfully deny or restrict the use of leave as a reasonable accommodation.

The ADA requires covered employers (employers with 15 or more employees) to provide reasonable accommodations, in some cases including leave, to enable employees with disabilities to perform the essential functions of their jobs. The EEOC’s recent guidance focuses on issues specific to requests for workplace leave as a reasonable accommodation under the ADA:

• Equal Access to Leave Under an Employer’s Leave Policy – Employees with disabilities must have access to leave on the same basis as all other similarly-situated employees. Employers must treat an employee requesting leave, for reasons related to a disability, the same as an employee who requests leave for a non-disability-related reason.
• Granting Leave as a Reasonable Accommodation – Employers must consider providing an employee who requests disability-related leave with unpaid leave as a reasonable accommodation, provided that the leave does not pose an undue hardship. Unpaid leave should be an option even where leave is not offered as an employee benefit; the employee is not eligible for leave under a leave policy; and/or the employee has otherwise exhausted existing leave entitlements, such as leave under the Family and Medical Leave Act. Notably, employers are not required to provide paid leave beyond that expressly provided in a paid leave policy. Further, the agency considers indefinite unpaid leave to constitute an undue hardship.
• Leave and the Interactive Process Generally – Employers must treat requests for leave or additional leave, based on a medical condition, as a request for a reasonable accommodation. Upon such a request, employers must engage in an interactive process with the employee, in which employers may obtain necessary information to determine whether leave can be granted as a reasonable accommodation. The information that may be required to evaluate a particular request for leave is dependent on the particular request, but common relevant issues include: the specific reasons for the leave; the type of leave, e.g., block leave or intermittent; and when the need for leave will end. Although the interactive process may continue after the initial request for leave has been granted, especially where an employee’s return date is unknown or an employee requests additional leave, employers must refrain from asking employees with fixed return dates for periodic updates.
• Maximum Leave Policies – Employers must not automatically enforce maximum leave, or “no fault” leave policies, and must modify such policies if an employee requires leave beyond the caps set therein, provided the additional leave would not cause an undue hardship.
• Return to Work and Reasonable Accommodation (Including Reassignment) – Employers violate the ADA by requiring an employee to have no medical restrictions in order to return to work. Employers must allow an employee with a disability to return to work after a leave if the employee can perform his or her job with or without a reasonable accommodation, unless the needed accommodation would cause an undue hardship. If reassignment is required, employers must place the employee in a vacant position, for which he or she is qualified, without requiring that the employee compete for the position. Employers should be sure to reengage in the interactive process with a returning employee to explore possible accommodations that will allow him or her to perform the essential functions of the job consistent with any medical limitations.
• Undue Hardship – Potentially relevant factors in assessing whether a request for leave would constitute an undue hardship include the amount and/or length of leave required; the frequency of the leave; whether there is any flexibility with respect to the days on which the leave is taken; whether the need for intermittent leave on specific dates is predictable or unpredictable; the impact of the employee’s absence on coworkers and on whether specific job duties are being performed 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, which takes into account, for example, the size of the employer.

Employers should review any applicable policies, procedures, practices, and training programs in light of the EEOC’s guidance. If you have questions, please contact one of the Winston & Strawn Labor and Employment Department attorneys listed below or your usual Winston & Strawn LLP contact.

The full text of the guidance is available here, and the EEOC press release announcing its issuance may be found here.