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.


- Tracie DeFreitas, M.S., Lead Consultant, ADA Specialist, Job Accommodation Network




Rejecting the stated arguments of both parties in Young v. United Parcel Service, Inc., the Supreme Court overturned the U.S. Court of Appeals for the 4th Circuit’s decision affirming 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.


Facts of the Case


The PDA provides that pregnancy discrimination is a form of sex discrimination prohibited by Title VII.  It further 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 policies that provided light duty for workers in three categories:  (1) those who had suffered on-the job injuries, (2) those who had “permanent” disabilities covered by the Americans with Disabilities Act (ADA), and (3) those who had lost Department of Transportation certifications.  Light duty was not available for any other reason, including pregnancy.  The plaintiff, a part-time driver, was required to lift up to 70 pounds.  However, she had a pregnancy-related lifting restriction of no more than 20 pounds.  UPS would not permit her to work while under a lifting restriction, and refused to provide light duty for her.  Therefore, the employee remained at home without pay for the majority of her pregnancy, and lost her employee medical coverage.  She then sued, arguing that UPS’s refusal to accommodate her pregnancy-related restriction was illegal disparate treatment under the PDA, since it had accommodated other workers who were similarly unable to work.


The trial court dismissed the plaintiff’s claims before trial, finding that, as a matter of law, UPS had not discriminated against plaintiff because of her pregnancy.  It found that the workers in the three categories against whom the plaintiff sought to compare herself were too different to be appropriate comparators.  The 4th Circuit affirmed the dismissal, stating that UPS had implemented a “pregnancy-blind policy” that treated all workers who did not fall into one of the three categories, which included the plaintiff, in the same manner.


The Court’s Ruling


Of particular note, the Court began its legal analysis by observing that, since the plaintiff’s pregnancy, Congress expanded the definition of “disability” under the ADA to include impairments substantially limiting an individual’s ability to lift, among other things.  It further noted that the EEOC has interpreted this expanded definition to require employers to accommodate employees with temporary lifting restrictions, including those that were not related to on-the-job injuries.  The Court, however, specifically declined to express any view regarding these statutory and regulatory changes.


The Court then turned to the interpretation of the PDA clause requiring the same treatment for pregnant employees as “other persons…similar in their ability or inability to work.”  On the one hand, the plaintiff argued that an employer violated the PDA if it provided an accommodation only to a subset of workers and not to pregnant workers, even if other non-pregnant workers do not receive the accommodation.  On the other hand, UPS argued that this clause simply defines sex discrimination to include pregnancy discrimination, such that accommodations provided to pregnant workers are compared to the accommodations to others within a “facially neutral category (such as those with off-the-job injuries).”  The Court expressly rejected both interpretations.


The Court found that the plaintiff’s interpretation would grant pregnant workers “most-favored-nation” status, meaning that if an employer provided only one or two employees with an accommodation, it would then be required to provide similar accommodations to all pregnant employees regardless of any legitimate differences between the workers – such as the type of job, the criticality of the affected employee’s presence, seniority, or age.  The Court determined that Congress did not intend to grant unconditional most-favored-nation status to pregnant workers.  In fact, as the Court noted, an employer is normally permitted “to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so.”  The Court also specifically rejected the EEOC’s 2014 pregnancy guideline on which the plaintiff and the government relied.  In the guideline, the EEOC stated that “[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitation (e.g., a policy of providing light duty only to workers injured on the job,”) and provided an example of such discrimination that was clearly based on the fact pattern in this case.  The Court noted that the EEOC’s guideline was questionable based on its timing (issued after the Court accepted this case for consideration), consistency (it takes positions inconsistent with those previously advocated by the government), and thoroughness of consideration (the EEOC failed to explain the basis for this interpretation).


The Court also refused to accept UPS’ interpretation, finding that the clause provides more than a simple definition of sex discrimination to include pregnancy.  The Court noted that the PDA was passed specifically to overturn the Court’s prior holding in General Elec. Co. v. Gilbert, which had found a company plan that provided nonoccupational sickness and accident benefits to all employees, but failed to provide such benefits for pregnancy, did not violate Title VII – and thus permitted employers to treat pregnancy less favorably than other conditions resulting in a similar inability to work.


Instead, the Court adopted a third approach.  It applied the McDonnell Douglas framework, under which a plaintiff alleging that a denial of accommodation was disparate treatment under the PDA must first establish a prima facie case of discrimination, by demonstrating “that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work.’”  The burden then shifts to the employer to demonstrate a legitimate nondiscriminatory reason for its refusal to accommodate her – in this case, its light duty policies.  The burden then shifts back to the plaintiff to establish that the employer’s reason is actually pretextual.  The Court stated, “We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather - when considered along with the burden imposed - give rise to an inference of intentional discrimination.”


In the present case, the Court stated that the plaintiff potentially can demonstrate a significant burden by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.  The Court also suggested that the plaintiff could also argue the fact that UPS has multiple policies to accommodate non-pregnant employees suggests that its reasons for failing to accommodate pregnant employees are not sufficiently strong, and a jury could possibly infer intentional discrimination.  The Court referenced its “longstanding rule” that plaintiffs can rely on circumstantial evidence to rebut the employer’s proffered reason – and more specifically, that the plaintiff can rebut such reason by showing how the policy works in practice.  Finding that the plaintiff offered sufficient evidence to sustain a claim of discriminatory treatment and her claims should not have been dismissed as a matter of law, the Court returned the case to the lower court for further proceedings.


It is worth noting that this opinion was not unanimous.  The dissent, which would have upheld the light duty policies as being “neutral,” castigates the majority for “craft[ing]…a new law that is splendidly unconnected” with the PDA.  The dissent argues that the majority’s interpretation – that the PDA requires employers to refrain from adopting policies that impose “significant burdens” upon pregnant women without “sufficiently strong” justifications – is pure invention, not grounded in in the PDA or legal precedent.


Practical Impact of the Ruling


The Supreme Court majority’s decision recognizes that the PDA does not require employers to ensure that pregnant employees receive preferential treatment as compared with other employees, but the standard devised by the majority appears to require just that.  In addition, the Court effectively has created a new and lower burden of proof for pregnant employees seeking to show that a denial of accommodation is disparate treatment under the PDA; a standard that permits discrimination to be inferred if the employer’s justification for a policy is not “sufficiently strong” to impose the burden on pregnant workers. We note, however, that because of the expansion of the ADA to include temporary conditions, such as pregnancy-related conditions that substantially limit a major life activity, employers will be subject to a reasonable accommodation obligation under the ADA for pregnant employees – and that the ADA’s mandate does not require consideration of whether such accommodations have been provided to other, non-pregnant employees.


Article courtesy of Shawe Rosenthal www.shawe.com

Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit www.ThinkHR.com.

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