The Americans with Disabilities Act (ADA) prohibits discrimination in the workplace against disabled individuals. By law, if an employer knows that an employee or applicant is disabled, it must reasonably accommodate the known disability, if doing so would not impose an “undue hardship” on the operation of the employer’s business. There are many types of reasonable accommodations, from modifying facilities to reassignment to a vacant position.
Leave from work may also be a reasonable accommodation. But how much? And how much is too much?
Last week, a panel of experts met at the EEOC to discuss the use of leave from work as a reasonable accommodation under the ADA. You can view a video of the meeting here, read the EEOC’s press release here, and see the written testimony here.
Some of the high points:
- EEOC Commissioner Victoria Lipnic conceded that “managing situations where employees need leave for medical conditions is one of the most vexing issues for both employers and employees.”
- Christopher Kucznyski, EEOC Assistant Legal Counsel in charge of ADA issues emphasized that an employer’s “no fault” attendance policy must be modified, absent undue hardship, if an employee needs additional leave as a reasonable accommodation.
- Ellen E. McLaughlin and Edward Lee Isler, management-side employment-law attorneys, requested that the EEOC offer more detailed and defined examples of situations where maximum leave policies are called into question and provide examples of times when additional leave is (and is not) necessary.
The EEOC has invited public comments on this issue. Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, D.C. 20507, or emailed to Commissionmeetingcomments@eeoc.gov.
What to remember about reasonable accommodations
While the EEOC sorts this out, here are three points about leave as a reasonable accommodation to remember:
- An employee must be disabled to qualify for a reasonable accommodation, however…Under the ADA Amendments Act (ADAAA), the definition of “disability” is so broad, that just about all of us are disabled in one way or another.
- Just because an employee requests leave as a reasonable accommodation does not mean that the employee gets it. Where more than one accommodation would work, the employer may choose the one that is less costly or that is easier to provide. However, before selecting a reasonable accommodation, the employer should talk with the employee to explore various viable options.
- Don’t forget the interplay between the ADA and the Family and Medical Leave Act (FMLA). The EEOC has a nice fact sheet on this. Under the FMLA, eligible employees may take up to 12 weeks off from work in a 12-month period because, among other things, a “serious health condition” makes the employee unable to perform one or more of the essential functions of his or her job. Although “serious health condition” and “disability” are not synonymous, there can be some overlap, especially if the serious health condition is long-term. Therefore, it is possible that if an employee uses up his/her 12 weeks of FMLA leave, the employer may still have to afford that employee additional leave under the ADA, if doing so would not cause an undue burden to the employer.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.