ADA, FMLA leave

There are several things employers want to pay close attention to in the EEOC’s latest document covering the ADA. 

Ever since the EEOC started suing employers for not providing disabled employees with leave as a reasonable accommodation under the ADA, employers have been waiting for guidance on the issue.

Finally, the EEOC has delivered … sort of.

While it stopped short of issuing “official guidance,” it did just publish a resource document entitled, “Employer-Provided Leave and the Americans with Disabilities Act.”

It’s not considered official guidance because it wasn’t voted on by the entire commission. But it does provide a lot of the info employers have been seeking on when and how leave under the ADA must be considered/granted.

Here are the topics the document covers and what employers need to know from each of those sections:

Equal access to leave under your leave policies

  • If an employer receives a request for leave for reasons related to a disability, and the leave falls within the employer’s existing leave policy, it should treat the employee requesting leave the same as an employee who requests leave for reasons unrelated to a disability. (Example: If you don’t require non-disabled employees to provide a doctor’s note to support a leave request, you can’t require disabled employees to provide a doctor’s note.)
  • Employers are entitled to have policies that require all employees to provide a doctor’s note or other documentation to substantiate the need for leave. But the requirement must be applied to all individuals equally.

Leave as a reasonable accommodation

  • Even if the leave request resulting from an individual’s disability doesn’t fall under an employer’s existing leave policies, the employer is still has an obligation to consider providing unpaid leave to the employee as a reasonable accommodation — as long as the employee requires it, and as long as the leave wouldn’t result in an undue hardship for the employer.
  • An employer must consider leave as a reasonable accommodation even if the employee has exhausted all leave under an FMLA policy, workers’ comp program or similar state/local laws.
  • An employer can deny requests for leave under the ADA only when it can show that providing such an accommodation would impose an undue operational or financial hardship (Note: The bar for establishing a financial hardship is set pretty high).
  • An employer cannot penalize an employee for taking leave as a reasonable accommodation.

The interactive process

  • Any time an employee requests leave from the job because of a medical condition, it must be treated as a request for a reasonable accommodation.
  • If the request would fall under another leave program — such as the FMLA — the employer may grant the leave under that program. But if another program doesn’t apply, or an employee has exhausted his or her leave under the program, the employer must promptly engage in the ADA’s interactive process.
  • The interactive process involves engaging the employee in an effort to obtain relevant information to determine the feasibility of providing the leave as a reasonable accommodation without causing an undue hardship.
  • An employer may obtain information from the employee’s healthcare provider to obtain info on the specific reasons the employee needs leave and how much leave the employee needs. (But be careful, HIPAA-release requirements apply before you can speak to an employee’s physician.)
  • The interactive process may continue even after an initial request for leave has been granted, particularly if the request didn’t specify an exact return-to-work date.
  • An employer that has granted leave with a fixed return-to-work date may not ask the employee to provide periodic updates on when he or she can return, although it may reach out to check on the employee’s progress.

Fixed/maximum leave policies

  • Any and all employer leave policies must take the ADA interactive process and ADA leave requests into account.
  • Policies that automatically terminate an employee for exhausting a set amount of leave, without first considering whether or not additional leave should be granted, do not abide by the ADA. (Example: If an employee cannot return to work after exhausting 12 weeks of FMLA leave, the employer is obligated to enter the interactive process to determine if additional leave should and can be granted under the ADA.)

Returning to work

  • An employer violates the ADA if it requires an employee with a disability to have no medical restrictions — i.e., be “100%” “healed” or “recovered” — before returning to work if the employee could perform his or her job with or without a reasonable accommodation.
  • An employer will also violate the ADA if it claims an employee with medical restrictions poses a safety risk but cannot show that the individual is a direct threat.
  • Reassignment to an existing vacant position elsewhere in the company because a disability prevents an employee from performing his or her old job is a reasonable accommodation employers are obligated to explore.
  • If reassignment wouldn’t create an undue hardship, and reassignment is required to enable the employee to return to work, an employer must place the employee in a vacant position for which he or she is qualified, without requiring the person to compete with others for open positions.
  • Reassignment doesn’t include promotion.
  • Generally, an employer does not have to place someone in a vacant position as a reasonable accommodation when another employee is entitled to the position under a uniformly-applied seniority system.

Undue hardship

  • Indefinite leave — meaning that an employee cannot say whether or when she will be able to return to work at all — will constitute an undue hardship.
  • Determining whether providing leave would result in undue hardship may involve consideration of the following:
    • 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 co-workers 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.
  • Leave as a reasonable accommodation includes the right to return to the employee’s original position. However, if an employer determines that holding open the job will cause an undue hardship, then it must consider whether there are alternatives that permit the employee to return to work.

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