A Quick Guide to Leaves As “Reasonable Accommodation”

EEOC logoThe Equal Employment Opportunity Commission recently issued the “Employer-Provided Leave and the Americans with Disabilities Act” guidance to help employers know when leaves of absences are considered reasonable accommodations for disabled employees.

The EEOC advises employers to consider leaves of absences as reasonable accommodations that must be granted unless they impose undue hardship to the business. However, determining whether a leave of absence is a reasonable accommodation or an undue hardship can be difficult for employers. Luckily, the recently issued guidance offers more information on how employers can decide whether or not to grant the disabled worker’s request.

Approximate dates

When an employee gives an approximate date to return to work, the employer should look at each case individually to determine whether or not it is feasible for the employee to be gone without causing an undue hardship. If the date changes for some reason, maybe because the employee takes longer than expected to recover from a medical procedure, then the employer is allowed to reconsider.

Maximum leave

Most employers have maximum leave policies in place that dictate how long employees are allowed to be out of the office. The guidance makes it very clear that employers should consider granting extensions to this maximum leave policy when a disabled individual requests it to accommodate his disability.

Communications

The EEOC permits employers to contact employees during their leave as long as they are checking on their progress and discussing whether or not their projected return to work date has changed.

Medical documentation

In some circumstances, employers are allowed to ask for medical documentation before granting requests. For example, if an employee was given a leave of absence of one month, but then asks for an additional two weeks, the employer is permitted to ask for documentation showing why the extra time is needed. But, if the employee is asking for a leave of absence with a fixed return date, he should not be asked to provide medical updates.

The guidance from the EEOC says:

An employer may obtain information from the employee’s health care provider (with the employee’s permission) to confirm or to elaborate on information that the employee has provided. Employers may also ask the health care provider to respond to questions designed to enable the employer to understand the need for leave, the amount and type of leave required, and whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave).

Additional leave

Before deciding whether or not a leave of absence imposes an undue hardship, employers are allowed to consider what other leaves the employee has taken in the recent past. For example, if an employee has already used FMLA leave and all of their allotted sick days, but is now requesting an additional one month leave of absence, the employer may take all of this time into consideration when determining whether or not the employee’s absence is an undue hardship. If the employer’s other absences have stretched the company’s resources too thin, then perhaps this additional leave will impose an undue hardship and should not be approved.

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Unpaid leave

If an employer does make the decision to grant a leave of absence, they do not need to pay the disabled employee during this time unless they have a paid leave policy that applies to all employees.

Indefinite leave

When a disabled employee cannot give an approximate date of return to their employer, the employer is under no obligation to grant their leave of absence.

Alternate positions

When an employer allows an employee to take a leave of absence, they must hold the position open until the expected return to work date. However, sometimes employers discover the employee’s role needs to be filled sooner than expected in order to keep the company running. In these situations, the employer can fill the disabled employee’s job as long as there is an alternate job ready and waiting for them upon their return.

This guide should provide more clarity to employers who are still questioning whether or not to allow disabled employees to take extended leaves of absence.

Cortney Shegerian is an attorney with Los Angeles based Shegerian & Associates. Shegerian’s practice areas of expertise include discrimination, harassment, whistle blower retaliation and wrongful termination, among others.  Her work includes all aspects of case management, with a particular emphasis on mediation, trial preparation and jury trial litigation.

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