In newly published guidance, the Equal Employment Opportunity Commission (“EEOC”) discusses employer leave policies and the Americans with Disabilities Act (“ADA”). This guidance is significant for a number of reasons. First, ADA-related developments feature prominently in the EEOC’s most recent enforcement plan. Second, alleged ADA violations continue to rank high on the list of grounds for which the EEOC both receives complaints and ultimately initiates lawsuits. Third, the interaction of ADA and employer leave policies adds another wrinkle to the complex interaction of laws at the federal, state, and local level that require paid or unpaid leave in some fashion.
The Relevant ADA Requirements
Before discussing the EEOC’s guidance, a brief refresher on the ADA “basics” may prove helpful. The ADA prohibits disability-based discrimination in employment and requires covered employers to provide reasonable accommodations to employees with disabilities. ADA regulations define “reasonable accommodation” as “any change in an employee’s work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment accommodation.”
Under this definition, a broad variety of modifications to the work environment could potentially be reasonable accommodations, including leave. Potential accommodations, however, are not reasonable if: 1) they require eliminating an essential function of the job, or 2) they would cause undue hardship to the employer. A determination of undue hardship is a case-by-case analysis of the effect of the proposed accommodation on the employer’s operations or finances.
An employee who requests an accommodation triggers the “interactive process,” which, in broad terms, can be thought of as a dialogue between employer and employee seeking to identify the precise limitations of the disability and the potential reasonable accommodations that could overcome those limits. The employee does not need to use any specific phrasing to request an accommodation.
So how does the ADA affect employer leave policies?
Equal Access to Leave
Employers may not discriminate in employment on the basis of an individual’s disability. In the leave context, this means when an employee with a disability requests leave within the employer’s existing policies, the employer should treat that employee the same as employees without disabilities who request leave. The EEOC highlights this requirement with an example:
Example 2: An employer permits employees to use paid annual leave for any purpose and does not require that they explain how they intend to use it. An employee with a disability requests one day of annual leave and mentions to her supervisor that she is using it to have repairs made to her wheelchair. Even though he has never denied other employees annual leave based on their reason for using it, the supervisor responds, “That’s what sick leave is for,” and requires her to designate the time off as sick leave. This violates the ADA, since the employer has denied the employee’s use of annual leave due to her disability.
Leave as a Reasonable Accommodation
The EEOC’s guidance highlights the role leave can play as a reasonable accommodation. The EEOC’s guidance states that employers are required to consider unpaid leave as a reasonable accommodation to an employee who has a disability, even if:
the employer does not offer leave as an employee benefit;
the employee is not eligible for leave under the employer’s policy; 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).
Employers need not provide unpaid leave as a reasonable accommodation if doing so would create an undue hardship. Moreover, the EEOC cautions employers should not penalize employees who use leave as a reasonable accommodation, as doing so may be considered retaliation that violates the ADA.
Potential Red Flags
The EEOC guidance highlights leave-related policies where employers may run into ADA trouble.
Maximum Leave Policies are common to many employers in various forms. Sometimes these policies are referred to as “no fault” leave policies. These policies often place caps on the amount of leave employees can use. Limits on Unplanned Absences are another policy tool some employers implement, and these policies typically spell out a set number of unplanned days off an employee is permitted to take before disciplinary action may occur. As the EEOC correctly notes, employees with disabilities aren’t categorically exempt from these policies. Nevertheless, employers may need to adjust these policies as a reasonable accommodation for an employee with a disability, unless the modification would constitute an undue hardship.
100% Healed Policies. Sometimes, employers may require an employee with a disability to be 100% healed (meaning, they have no medical restrictions) before returning to work, such as, for example, after a lengthy medical leave related to surgery. If such an employee is able to perform the essential functions of his or her job with our without reasonable accommodation, requiring that employee to be 100% healed before returning to work may violate the ADA. While there are exceptions – including undue hardship and the direct threat defense – employers maintaining 100% healed policies should tread carefully to ensure ADA compliance.
In light of the EEOC’s new guidance on this topic, what should employers do?
- Self-Audit. Review internal policies, procedures, and employee job descriptions for ADA compliance.
- Train. Ensure that managers, supervisors, and HR professionals, as appropriate, are regularly trained on how to respond to accommodation requests, including leave as a possible accommodation.
- Document, document, document. Keep detailed records of discussions with employees that involve the interactive process and any decisions on requests for accommodation (and remember – there are no “magic words” an employee must use when requesting an acommodation).
- Consult Counsel. Work with knowledgeable counsel early on to ensure ADA compliance and reduce legal exposure.