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Leave and the ADA
One of the more confusing reasonable accommodation issues that employers must handle under the ADA is permitting the use of accrued paid leave, or providing unpaid leave, when an employee’s disability necessitates it. The concept can be difficult to grasp because it doesn’t align with the idea of providing an accommodation that keeps an employee on-the-job. However, the goal in allowing the use of leave time as a reasonable accommodation job-protected time in order to enable a qualified employee with a disability to manage his or her medical impairment and ultimately remain in the workforce. There are many situations that will require an employer to consider allowing an employee with a disability to use leave as an ADA accommodation, barring undue hardship. Some situations include, but are not limited to:
  • when there is no other effective accommodation;
  • when an employee is not eligible to take leave under the federal Family Medical Leave Act (FMLA) but has a qualifying disability under the ADA;
  • when an employee is FMLA eligible but requires additional time off beyond the twelve-week allowance under that statute; or
  • when an employee has exhausted paid vacation and sick leave and requires additional intermittent time off because of a qualifying medical impairment.
As a practical matter, an employer may want to first determine if an employee is eligible for leave under FMLA, a state leave law, or company leave policy before granting leave as an accommodation under the ADA. Why? Because FMLA, state laws, and company leave policies traditionally include leave entitlements that are more clearly understood. It can be challenging to determine if, and how much, leave is reasonable under the ADA. JAN Consultants respond to a variety of questions related to leave and the ADA. Here are some examples of common questions and responses: Question #1: Can an employer apply its “no-fault” leave policy to everyone? No. According to the Equal Employment Opportunity Commission (EEOC), if an employee with a disability requires additional unpaid leave as a reasonable accommodation, an employer must modify its "no-fault" leave policy to provide the employee with additional leave. However, if an employer can show that 1) there is another effective accommodation that will enable the employee to perform the essential functions of the position (and does not interfere with the employee's ability to address his/her medical needs), or 2) granting additional leave will cause an undue hardship, then the additional leave will not be required. Modifying workplace policies, including leave policies, is a form of reasonable accommodation (EEOC, 1999). Question #2: Is leave provided as an accommodation required to be paid or unpaid under the ADA? Under the ADA, employees may be permitted to use their own accrued paid vacation or sick leave, as-needed, or be granted additional unpaid leave as an accommodation. Paid leave beyond that which is provided to similarly-situated employees is not required. EEOC states that an employee with a disability should be permitted to exhaust accrued paid leave before using unpaid leave as an accommodation. Question #3: What duration of leave is required under the ADA? Unlike the FMLA, the ADA does not require an employer to provide leave for a specified duration of time. Thus, it is up to an employer's discretion to determine how much leave is reasonable as an accommodation. This determination must be fact-specific and will often depend on whether a particular amount of leave time imposes an undue hardship on the employer. An employer should conduct a case-by-case assessment to determine what is reasonable, just like with any other accommodation. This is where it’s important to not simply apply a no-fault leave policy. Under the ADA, an employer must be willing to allow an exception to a fixed leave policy as a reasonable accommodation, barring undue hardship. Employers should document how an employee’s leave impacts business operations. If providing additional leave poses an undue hardship, an employer should be prepared to demonstrate why. Question #4: Does the EEOC provide any information about how to determine undue hardship related to leave? In its Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA, the EEOC offers a number of factors to be considered in determining whether an accommodation imposes an undue hardship. Regarding leave as an accommodation, an employer will often need to look at the impact the employee’s absence has had/will have on the operation of the business. The most useful undue hardship factors to consider in evaluating leave as an accommodation are those provided by the EEOC related to attendance issues – factors that put a strain on the employer’s operations, such as:
  • an inability to ensure a sufficient number of employees to accomplish the work required;
  • a failure to meet work goals or to serve customers/clients adequately;
  • a need to shift work to other employees, thus preventing them from doing their own work or imposing significant additional burdens on them; or
  • incurring significant additional costs when other employees work overtime or when temporary workers must be hired.
For more information, see q. 20 in the EEOC’s Enforcement Guidance on Applying Performance and Conduct Standards to Employees with Disabilities. It is suggested that employers make an effort to document the impact employees’ absences have on operations. Not from a morale perspective, but rather, an operational perspective. For example, how was the employee’s work completed while s/he was absent? Were production goals met? Was overtime paid to other employees to complete the work? Was the employer unable to provide a service to its customers? Keep a confidential log of this type of information in order to make a fact-specific judgment of undue hardship, if necessary. Question #5: Can leave be intermittent? Yes. Intermittent leave often involves allowing the use of unscheduled, accrued paid leave or unpaid leave, as-needed, due to a qualifying medical impairment. Granting this type of accommodation will typically also require a modification to an employer’s attendance policy to excuse absences permitted as an ADA accommodation. An employer may determine the number of absences that will be considered reasonable and may request medical documentation that includes an estimation of the number of absences that may be anticipated due to the medical impairment. Note, if employees without disabilities are permitted to use their accrued paid leave intermittently, at-will, then employees with disabilities should not be treated differently. Also, FMLA may apply in situations where intermittent leave is required. Question #6: Does an employer have to hold open an employee's job while using leave as a reasonable accommodation under the ADA? Yes, otherwise the accommodation of leave will not be effective. The ADA requires that the employer hold the employee’s position open while on leave, unless it can show that an undue hardship will result. Upon returning to work, an employee must be permitted to return to the same position, if the employee is still qualified and able to perform essential job functions. This is where a fact-specific assessment will be necessary to determine how long the position can be held before hardship results. Courts have held varying opinions regarding the amount of time that is reasonable for holding a position open; anywhere from several months, to six months, to one year. According to the EEOC, if it is an undue hardship to hold an employee's position while the employee is on leave, then the employer must consider reassigning the employee (absent undue hardship) to an equivalent, vacant position for which s/he is qualified, for the duration of the leave period. The employee would then return to that position when ready to return to work. Question #7: Does an employer have to grant indefinite leave as a reasonable accommodation? According to the EEOC, although employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration because granting indefinite leave, like frequent and unpredictable requests for leave, can impose an undue hardship on an employer’s operations. Also, repeated extensions of leave can become a request for indefinite leave. Employers are encouraged to request an anticipated date of return, even if it’s not an absolute return date. Having an anticipated date of return will help the employer make a determination regarding the amount of leave that will be reasonable.
William Jordan
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