Earlier this week the Equal Employment Opportunity Commission (“EEOC”) issued new guidance for employers on the use of leave as a reasonable accommodation under the Americans with Disabilities Act (”ADA”). The EEOC issued the guidance after noting a “troubling trend” of employer policies which unlawfully (in the EEOC’s opinion) restrict or deny the use of leave as a reasonable accommodation. EEOC charges of disability-based discrimination reached an all-time high in 2015, growing 6% over the previous year. The new guidance, which “creates no new agency policy,” provides employers with a “one-stop” guide to leave issues, which the EEOC identifies as “some of the toughest situations for employers and employees.”
The ADA prohibits employers from discriminating on the basis of disability in employment. Covered employers (employers of 15 or more employees) are required to provide reasonable accommodations to applicants and employees with disabilities. Unlike other federal statutes, which promote equal treatment amongst groups, the ADA places an affirmative burden on employers to make reasonable changes to the work environment, if those changes will allow an employee with a disability to complete the essential functions of their job. Under the ADA, the granting of leave may be a reasonable accommodation if granting the leave will allow an employee to complete the essential functions of their job, with or without accommodation, upon their return from leave.
The guidance issued by the EEOC addresses six issues the EEOC considers most important for employers faced with a request for leave as a reasonable accommodation.
- Equal Access to Leave Under an Employer’s Leave Policy. Here, the EEOC offers the fairly straightforward guidance that employers must apply the same leave of absence rules to employees with disabilities as applied to those without disabilities. Employers may not treat a disabled employee who requests leave differently than it treats non-disabled employees.
- Granting Leave as a Reasonable Accommodation. According to the EEOC, an employer must consider providing unpaid leave as a reasonable accommodation to a disabled employee who needs it, as long as it does not create an undue hardship for the employer. This is true even if the employer does not offer leave to employees, the employee is not eligible for leave, or the employee has already exhausted their leave entitlement under the FMLA or other leave programs available under the employer’s policies. Finally, employers may not penalize an employee for using leave as a reasonable accommodation.
- Leave and the Interactive Process Generally. The EEOC encourages employers to promptly engage in an “interactive process” with an employee who requests any type of accommodation, including leave. The interactive process should focus on the specific reasons the employee needs leave, whether the leave will be for a block of time or used intermittently, and when the need for leave will end. Employers should maintain communications with the employee while on leave, but employers may not ask employees with a fixed return date for periodic updates. Employers may, however, reach out to employees on leave to check on their progress.
- Maximum Leave Policies. The ADA allows employers to have leave policies that cap the maximum amount of leave that an employer will provide or allow. However, the EEOC guidance states that employers may be required to grant leave beyond this amount as a reasonable accommodation to disabled employees who require it. Of course, the employer may be excused if they can show that providing additional leave will cause an undue hardship. Finally, the EEOC reminds employers that simply complying with the requirements of the Family Medical and Leave Act does not meet the requirements of the ADA.
- Return to Work and Reasonable Accommodation (Including Reassignment). Here, the EEOC cautions against the use of “100% Healed” policies, which require an employee to be fully recovered before returning to work. Instead, employers should engage in dialogue with the employee about when the employee can return to work and perform their essential functions, either with or without any additional accommodations. The EEOC guidance also states that, in some cases, a transfer to a vacant position for which the employee is qualified may also be considered a reasonable accommodation. The transfer need not be a promotion, and employers need not ignore established seniority systems.
- Undue Hardship. Finally, the EEOC discusses the undue hardship standard, which determines whether or not the employer must provide a requested accommodation. Factors that employers should consider when determining if a requested accommodation creates an undue hardship include the duration and frequency of the leave, the flexibility of the required leave, whether the leave will be on predictable dates, the impact on the employer’s business, the amount of leave used in the past, and the impact of leave on the employee’s coworkers. Moreover, the EEOC states that indefinite leave, when the employee is unsure when or if they will ever be able to return to work, “will constitute an undue hardship.” Because of the fact-specific nature of the undue hardship standard, Employers will need to evaluate requests for leave on a case-by-case basis.
While the guidance from the EEOC will be helpful to many employers, it does not change existing law in any significant way. The EEOC’s guidance simply provides further clarification on what has been settled for years, that in many circumstances, employers are required to grant leave beyond that specified in their handbook policies. Employers still bear the burden of engaging in an interactive process once an employee’s need for an accommodation is known and must provide accommodations that don’t create an undue hardship for the employer.