By Corey Argust

For some time, federal courts have concluded that granting leave to an employee may be a reasonable accommodation for a disability under the Americans with Disabilities Act (“ADA”). On May 9, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidance regarding when and how employers must grant leave under the ADA. The guidance marks the first time since 2002 that the EEOC has provided additional insights on the often-confusing requirements for providing leave to employees because of disabilities. While the guidance does clarify certain situations in which employees will be entitled to leave, employers are still left to wrangle with the difficulty of determining when leave requests may lawfully be denied.

First, the EEOC guidance makes clear that an employer must treat employees requesting paid leave for ADA purposes the same as the employer would treat employees requesting leave for non-ADA purposes under existing leave policies. Accordingly, if no doctor’s note would be required from a non-disabled individual requesting paid leave, an employer cannot require its disabled employees to provide such documentation when requesting paid leave.

Further, employers are obligated to consider providing unpaid leave as a reasonable accommodation in a wide range of circumstances. Employers must consider granting unpaid leave even if an employer does not offer leave as a benefit, an employee has exhausted all available leave—including, for example, leave under the Family and Medical Leave Act (“FMLA”)—or an employee is ineligible to take leave under the employer’s policies. Employers may only deny granting unpaid leave as an accommodation if doing so would impose an “undue hardship” on the employer. This means that, absent an undue hardship to the employer, even probationary employees ineligible to take any leave under an employer’s policies must be provided with unpaid leave.

What constitutes an undue hardship? The EEOC’s guidance suggests employers consider the following actors to make that determination:

  • Amount and/or length of leave required;
  • Frequency of leave;
  • Flexibility with the days on which leave is taken;
  • Predictability of need for intermittent leave on specific dates;
  • Impact of an employee’s absence on coworkers and performance of the employee’s specific job duties; and
  • Impact on the employer’s operations

However, the EEOC’s guidance ultimately leaves employers without any concrete parameters for when leave requests will cross the line and actually pose an undue hardship. 

Additionally, the EEOC has taken the position that employers must treat all requests for leave due to a medical condition as requests for a reasonable accommodation under the ADA. This is true even if an employee does not specifically request leave as an accommodation. If the requested leave may be addressed under the FMLA or a workers’ compensation program, the employer may provide leave accordingly. But, if not, a request for medical leave must be treated as a request for a reasonable accommodation, triggering the need to engage in the “interactive process” with the employee.

Employers that maintain “maximum leave” and “100% healed” policies should reconsider their use. Under such policies, employees are automatically terminated after exceeding a predetermined amount of leave, and prohibited from returning to work with any continuing medical restrictions. Although not all such policies will violate the ADA in every situation, the EEOC strongly cautions against using these policies at all and urges employers to evaluate leave requests on a case-by-case basis. In practical terms, the ADA already requires employers to consider accommodations individually for each employee, so the EEOC has simply reinforced that employers must take part in the interactive process rather than rely on inflexible leave policies at the outset.

While the EEOC guidance is not law, it does provide useful information for how the EEOC will evaluate claims of disability discrimination involving leave. By individually evaluating leave requests using the factors highlighted by the EEOC, employers can position themselves well to minimize the risk ADA violations and claims. Additionally, employers should determine whether it is necessary to revise any leave policies that the EEOC has identified as particularly problematic. Employers unsure if their leave policies and procedures are ADA-compliant should seek legal counsel to assist with the process.

About the Author: Corey Argust is an associate with PilieroMazza in the Labor and Employment, Litigation, and Government Contracts groups. He may be reached at [email protected].