One of the more vexing issues facing both employers and employees involves leave time related to a medical condition, especially when the period of leave exceeds an employer's permitted leave allowance or otherwise violates an established attendance policy. Although such situations might be challenging and confusing, employers must confront them directly because using leave necessitated by an employee's disability constitutes a "reasonable accommodation" under the ADA.
Examples of reasons an employee with a disability might require leave
- Obtaining medical treatment or rehabilitation services related to the disability.
- Recuperating from an illness or an episodic manifestation of the disability.
- Obtaining repairs on a prosthetic device or other equipment such as a wheelchair.
- Avoiding temporary adverse conditions in the work environment (for example, an air-conditioning breakdown causing unusually warm temperatures that could seriously harm an employee with multiple sclerosis).
- Training in the use of a service animal or assistive device.
- Training in the use of Braille or sign language.
Here's a discussion of some frequent and confusing leave-related issues that employers and employees have presented to JAN.
How Much Leave Is Reasonable?
The ADA does not set a specific amount of time relative to the use of leave as a reasonable accommodation. As with any accommodation situation, you should consider a period of leave for an employee with a disability on a case-by-case analysis.
If an employee needs a leave of absence that exceeds his or her accrued paid leave, the employer should permit the employee to exhaust the paid leave and then allow the use of unpaid leave absent undue hardship.
Duration and predictability
Although there's no limit on the amount of leave used as a reasonable accommodation under the ADA, the EEOC has held that employers need not grant indefinite leave as a reasonable accommodation. However, the employee need not provide a specific, fixed date of return; a request with an approximate date or a date range is acceptable.
ADA and the Family and Medical Leave Act (FMLA)
An employee's rights under the ADA and the FMLA are separate and distinct. When an employee is entitled to leave under both laws, the employer should allow leave under the law providing the employee with the greater rights. The ADA might require granting leave beyond the 12 weeks allowed under the FMLA as a reasonable accommodation, and an employer can consider FMLA leave taken when evaluating undue hardship.
Erratic or Unreliable Attendance
The ADA can require employers to modify attendance policies as a reasonable accommodation in the absence of undue hardship. This does not mean employers must exempt an employee from time and attendance requirements completely or accept irregular and unreliable attendance unquestionably.
Frequent occurrences of tardiness or absenteeism, particularly during an extended period and without adequate notice, could impose an undue hardship in many situations.
Alternative Accommodations
Although it makes sense for employers to give an employee's choice of accommodation primary consideration when more than one reasonable accommodation is possible, they can ultimately choose the accommodation to be implemented, assuming it is equally effective. An employer can offer a reasonable accommodation that requires an employee to remain on the job, as long as it is effective and doesn't interfere with the employee's medical needs.
Holding the Employee's Position
The ADA requires an employer to consider returning the employee to his or her same position in the absence of undue hardship. If undue hardship applies, the employer must consider reassignment to a vacant, equivalent position for which the employee is qualified.
Undue Hardship
Whether an employer should allow the use of leave as an accommodation often comes down to an undue hardship analysis. In the case of leave, undue hardship will generally relate to a possible disruption in operations of the entity.
For example, the absence of an employee who performs highly specialized duties might create legitimate undue hardship issues, as might leave that occurs in a frequent and unpredictable manner. Generalized assessments are not adequate because undue hardship must be determined based on individual and specific circumstances.
What to Remember
Much of the confusion involving leave as an accommodation occurs when there are no clear and open lines of communication. Lack of communication is usually the major obstacle to executing an effective accommodation solution.
All parties need to be aware of any relevant updates or concerns, and everyone should make an effort to keep the information flowing. If you need ideas on how to encourage ongoing communication during the accommodation process, contact JAN or talk to an agent.
For related information on disability coverage options, see Personal Disability Insurance and Enhanced Disability Insurance.
Bill McCollum, MPA, Consultant
Frequently Asked Questions
How long must an employer hold a position while an employee is on leave under the ADA?
An employer should consider holding the position unless doing so would impose undue hardship; if undue hardship exists, reassignment to a vacant, equivalent position should be considered.
Can an employer require a specific return-to-work date?
No; an approximate date or a reasonable range of dates is generally acceptable when an employee requests leave as an accommodation.
Does the ADA require employers to provide leave beyond FMLA entitlements?
Yes, the ADA may require leave beyond FMLA if it is a reasonable accommodation and does not cause undue hardship for the employer.
Are employers required to ignore attendance policies for employees with disabilities?
No; employers may modify attendance policies as an accommodation when required, but they are not required to accept frequent, unpredictable absences that create undue hardship.