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 is to make that time job‑protected in order to enable a qualified employee with a disability to manage his or her medical impairment and ultimately remain in the workforce.
When leave may be required
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. These leave entitlements are often clearer, and 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.
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. The 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.
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 factors to consider 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 or will have on the operation of the business.
The most useful undue hardship factors to consider in evaluating leave as an accommodation are those related to attendance issues, 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.
Employers are encouraged to document how an employee’s absences affect operations—for example, how the work was completed during the absence, whether production goals were met, or whether overtime was paid to cover the work.
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.
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 a fact‑specific assessment; courts have varied in how long a position must be held open. If holding the position open creates an undue hardship, the employer should consider reassigning the employee, absent undue hardship, to an equivalent vacant position for which the employee is qualified.
Question #7: Does an employer have to grant indefinite leave as a reasonable accommodation?
According to the EEOC, employers may have to grant extended medical leave as a reasonable accommodation, but they have no obligation to provide leave of indefinite duration because indefinite leave can impose an undue hardship. Repeated extensions of leave can become a request for indefinite leave. Employers are encouraged to request an anticipated date of return to help determine what amount of leave is reasonable.
- Tracie DeFreitas, M.S., Lead Consultant, ADA Specialist, Job Accommodation Network
Article courtesy of Shawe Rosenthal.
SUPREME COURT "SPLITS THE BABY" IN PREGNANCY DISCRIMINATION CASE
Rejecting the stated arguments of both parties in Young v. United Parcel Service, Inc., the Supreme Court overturned the dismissal of the plaintiff’s claims of pregnancy discrimination. The plaintiff claimed that UPS’s policy of providing light duty to some non‑pregnant workers but not to her violated the Pregnancy Discrimination Act (PDA). The Court found that the plaintiff had proffered sufficient evidence that UPS’s policy was discriminatory, such that her claims should not have been dismissed as a matter of law.
Under the PDA, pregnancy discrimination is a form of sex discrimination prohibited by Title VII. The PDA specifies that employers must treat “women affected by pregnancy…the same for all employment‑related purposes…as other persons not so affected but similar in their ability or inability to work.”
UPS had light‑duty policies for workers with on‑the‑job injuries, those with permanent ADA disabilities, and those who lost Department of Transportation certifications. Light duty was not available for pregnancy. The plaintiff had a pregnancy‑related lifting restriction and UPS would not permit her to work under that restriction, nor would it provide light duty, so she remained at home without pay for much of her pregnancy and lost medical coverage.
The trial court dismissed the claims, and the Fourth Circuit affirmed, finding UPS’s policy facially neutral. The Supreme Court disagreed and applied the McDonnell Douglas framework for disparate treatment under the PDA.
The Court held that a plaintiff can establish a prima facie case by showing she belongs to the protected class, sought accommodation, the employer did not accommodate her, and the employer did accommodate others similar in their ability or inability to work. The employer may then offer a legitimate nondiscriminatory reason for its policy, and the plaintiff may show the reason is pretextual. The Court explained that the plaintiff could reach a jury by showing the employer’s policies impose a significant burden on pregnant workers and the employer’s justifications are not sufficiently strong.
The opinion was not unanimous; the dissent would have upheld the light duty policies as neutral. Practically, the decision creates a framework for evaluating PDA claims where employers treat pregnancy differently than other conditions resulting in similar work limitations. Employers should treat pregnancy‑related restrictions carefully and consider both ADA and PDA obligations when evaluating accommodations.
Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve workforce issues, mitigate risk, and ensure HR compliance. For more information, talk to an agent.
For related insurance topics, see Personal Disability Insurance and Enhanced Disability Insurance.
If you prefer professional help to evaluate coverage options or impacts on your business, you can talk to an agent.
Frequently Asked Questions
Is paid leave required when provided as an ADA accommodation?
An employer is not required to provide paid leave beyond what similarly situated employees receive; employees should generally be allowed to use accrued paid leave before unpaid leave is used as an accommodation.
Can an employer require medical documentation for intermittent leave?
Yes; employers may request reasonable medical documentation that explains the need for intermittent leave and estimates the likely frequency and duration of absences.
How long must an employer hold a job open while an employee is on leave?
There is no fixed rule; employers must assess on a case‑by‑case basis whether holding the job open creates an undue hardship and consider reassignment options if needed.
Does the PDA require the same accommodations for pregnant employees as for others with similar limitations?
The Supreme Court ruled that pregnant employees can challenge policies that impose significant burdens on them and that employers must provide legitimate, sufficiently strong reasons for differing treatment.