EEOC issues new guidance on leave of absence, ADA accommodations

Posted by Charles Middleton on 05/18/2016

Q: Earlier this month, the Equal Employment Opportunity Commission issued new guidance specifically addressing employer-provided leave as a possible accommodation for disabled employees. Why?

A: The new guidance document, which addresses the intersection of employer-provided leave of absence and the Americans with Disabilities Act, doesn't create any new EEOC agency policy or propose any new law; rather, it consolidates current guidance on the ADA, employer leave policies, reasonable accommodations, the interactive process, undue hardship and other relevant subtopics. It appears the motivation behind this stems from the overall rise in disability-related charges of discrimination filed with the EEOC, which increased over 6 percent from fiscal year 2014 to 2015. Moreover, recent charges received by the EEOC indicate employers may not know they should consider modification of leave policies as a reasonable accommodation of an employee's disability.


Q: Are employers required to comply with this new guidance?

A: While the EEOC guidance document is not binding law in itself, employers should definitely take it into consideration when making decisions related to leaves of absence. Guidance documents like these provide a clear picture to employers of how the EEOC intends to interpret the law in the course of investigating charges of discrimination or in prosecuting lawsuits.


Q: What about the Family and Medical Leave Act?

A: Although not explicitly discussed in the EEOC's guidance document, employers should note there's a complex interplay between the FMLA and the ADA. Although the FMLA and ADA are separate bodies of law, they may nevertheless both be implicated by the same employee for a single medical condition. Thus, when an employee requests time off for a health-related condition, the employer must evaluate the employee's rights under all potentially applicable statutes, including the ADA and FMLA, and must typically provide the employee with the “greater right” available. For example, even if an employee has exhausted all of her FMLA leave, she still may be entitled to additional leave time or a part-time schedule if it'd be a reasonable accommodation of her disability, and not an undue hardship on the employer.


Q: What are some of the main highlights from the guidance document?

A: When it comes to annual leave, whether allotted sick days or personal days, employers should treat employees with disabilities the same as other similarly situated employees. A reasonable accommodation of a disability may be a leave of absence, and an employer should provide leaves of absence consistently, whether the employee has a disability or not. A disabled employee's request for leave should be treated as a request for a reasonable accommodation, and the employer should therefore engage in the interactive process to determine if the FMLA, sick leave, or some other unpaid leave is feasible. Employers may need to consider exceptions to their maximum leave policies as a reasonable accommodation for a disabled employee. And, the interactive process applies to a disabled employee's request to return to work.  If the accommodation isn't an undue hardship, and if the employee's restriction doesn't cause a direct threat to safety, the accommodation may be an appropriate avenue to allow the employee to return to work.


Q: What if an employee's proposed leave of absence is unreasonable?

A: Employers aren't expected to grant indefinite leaves of absence. First, the employee must provide the employer an estimated date when she can resume her essential duties. Without an expected end date, an employer is unable to determine whether the temporary exemption is a reasonable one. Second, a leave request must assure an employer that an employee can perform the essential functions of her position in the near future.


Q: What if an employee needs to be physically present to perform her job?

A: Even with a reasonable accommodation, an employee must be able to perform the “essential functions” of her job, based on the employer's judgment, job descriptions and policies. An accommodation that allows a leave of absence when physical attendance is essential to the job may not be considered reasonable if it has an impact on the employer's operations or the ability of other employees to perform their assigned duties.


Q: What should Oklahoma employers being doing now?

A: Employers should consider auditing and updating their policies and practices regarding leaves of absence in light of the recent guidance. They may consider securing the counsel of a labor attorney. In this age of remote access to the workspace, telecommuting, broad coverage in favor of finding employee disability, generous leave of absence policies, and third-party administrators of leave, it can be tricky for an employer to determine its legal responsibilities and effectively navigate through the federal laws to provide the employee with the right option.   


Published The Oklahoman, May 18, 2016