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May 13, 2016

EEOC logoThis week, the U.S. Equal Employment Opportunity Commission announced here that it had released a new resource document entitled Employer-Provided Leave and the Americans with Disabilities Act. It’s a document for employers and employees alike, which addresses the rights of employees with disabilities who seek leave as a reasonable accommodation under the Americans with Disabilities Act of 1990.

Among the topics addressed are:

  • Equal Access to Leave Under an Employer’s Leave Policy
  • Granting Leave as a Reasonable Accommodation (I’ll get back to this one in a bit)
  • Leave and the Interactive Process Generally
  • Maximum Leave Policies
  • Return to Work and Reasonable Accommodation (Including Reassignment)
  • Undue Hardship

The resource document also includes some helpful links to additional information.

It’s got several good examples too

The EEOC does not intend for this resource document to create new agency policy. Rather, it’s a recap of existing law — albeit in a single resource with lots of good examples. For example — see what I did there? — there’s this little PTO/ADA pitfall into which many employers fall:

Example 1: An employer provides four days of paid sick leave each year to all employees and does not set any conditions for its use. An employee who has not used any sick leave this year requests to use three days of paid sick leave because of symptoms she is experiencing due to major depression which, she says, has flared up due to several particularly stressful months at work. The employee’s supervisor says that she must provide a note from a psychiatrist if she wants the leave because “otherwise everybody who’s having a little stress at work is going to tell me they are depressed and want time off.” The employer’s sick leave policy does not require any documentation, and requests for sick leave are routinely granted based on an employee’s statement that he or she needs leave. The supervisor’s action violates the ADA because the employee is being subjected to different conditions for use of sick leave than employees without her disability.

How long is enough leave remains a mystery

You didn’t expect the EEOC to drop a hard-and-fast rule on you, did you? The best you get is 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. But, we already knew that. Just remember…

  • You can have a maximum leave-length policy. Just be prepared to make exceptions.
  • If you have less than 50 employees, you may not be covered by the FMLA. But, leave could still be a reasonable accommodation under the ADA.
  • When your employee is coming back to work from a leave of absence, the duty to accommodate continues. Explore with the employee and his doctor (or other health care professional) possible accommodations that will enable the employee to perform the essential functions of the job consistent with the doctor’s recommended limitations.
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