Last week, the Equal Employment Opportunity Commission (EEOC) issued new guidance to clarify employer obligations under the Americans with Disabilities Act (ADA) in the context of employee leaves of absence.  The guidance provides a resource for employers dealing with requests for leave as a reasonable accommodation.  Notable takeaways of the EEOC’s position expressed in the guidance are summarized below.

Leave Policies.  Employers may not impose any different conditions on an employee who requests leave due to a disability than on employees who request other types of leaves.

• Example No. 1:  If an employer provides paid sick leave without any conditions, and an employee requests to use some of his/her paid sick leave due to a disability, the employer may not require the employee to produce documentation demonstrating the need for leave.
• Example No. 2:  If an employer permits employees to use paid annual leave for any purpose without explanation, the employer may not require an employee to use sick leave instead of annual leave, even if the employer learns the employee is using the leave for a disability-related purpose.

Unpaid Leave as a Reasonable Accommodation.  The guidance also emphasizes that employers are required to consider providing unpaid leave as a reasonable accommodation (so long as it does not create an undue hardship for the employer), even when:

• The employer does not generally offer leave;
• The employee is not eligible for leave under the employer’s policy; or
• The employee has exhausted the leave provided by the employer, including leave under a workers’ compensation program or the FMLA.

The fact that the leave requested as a reasonable accommodation exceeds what is permitted under the FMLA, by itself, is not sufficient to show undue hardship.

The “Interactive Process”.  When an employee requests a reasonable accommodation for a disability, the employer and employee are expected to engage in a dialogue over the details. This dialogue typically is referred to as the “interactive process,” and it allows the employer to determine the feasibility of providing leave as a reasonable accommodation without causing an undue hardship.

As part of this process, employers are allowed to obtain information from the employee’s health care provider (with the employee’s consent) either:

• To confirm information the employee has provided in support of the leave request; or
• To assist the employer in assessing the reasonableness of the requested accommodation.

However, the employer may not ask an employee on a leave with a fixed return date to provide periodic updates unless the employee requests additional leave time.

Maximum Leave Policies.  An employer may not enforce a fixed leave policy without taking into consideration whether additional leave may be granted as a reasonable accommodation. The EEOC suggests that employers, which use form letters to communicate with employees near the end of a leave, include a statement to remind each employee to request any additional leave that he/she may need as a reasonable accommodation as soon as possible so the employer may consider whether additional leave may be granted or whether it causes an undue burden.

The EEOC also recommends that an employer, which uses a third party to administer its STD or LTD programs, instruct the administrator to forward any requests for leave beyond the maximum STD or LTD leave periods to the human resources department.  According to the EEOC, the administrator (or employer) should not terminate such an employee until the human resources department has had an opportunity to engage in the interactive process.

Note:  Proof that the employer has engaged in the interactive process will assist in a defense against a claim that the employer failed to provide a reasonable accommodation.

Return to Work Issues.

100% Healed Policies.  In the guidance, the EEOC’s position is that an employer will violate the ADA if it requires an employee with a disability to have no medical restrictions (or be 100% healed or recovered) prior to returning to work.  The employee should be allowed to return to work if he/she can perform his/her job with or without reasonable accommodation (unless the employer can show the accommodation would cause an undue hardship).

Reassignment.  In some situations, the requested reasonable accommodation will be reassignment to a new job because the disability prevents the employee from performing his/her current job, even with a reasonable accommodation.  In this case, the EEOC’s position is that the employer should place the employee in a vacant position for which he/she is qualified, without requiring the employee to compete with other applicants for open positions.

Undue Hardship.  The guidance summarizes factors employers may consider when evaluating whether a request for a reasonable accommodation would cause an undue hardship.  Notably, the guidance also reiterates that indefinite leave – meaning that an employee cannot say whether or when he/she will be able to return to work at all – will constitute an undue hardship, and so does not have to be provided.

Contact Information.  For more information from Mazursky Constantine, please contact Don Mazursky (404.888.8840), Randall Constantine (404.888.8877) or Emily Friedman (404.888.8871).  For information from VCG Consultants, please contact Leslie Schneider (770.863.3617).