On May 9, 2016, the Equal Employment Opportunity Commission (“EEOC”) released new guidance on unpaid leave as a reasonable accommodation under the Americans with Disabilities Act (“ADA”).
The EEOC guidance makes clear that employers must not only provide employees with disabilities access to leave as an accommodation on the same basis as similarly situated employees without disabilities, but may be required to modify its policies to provide leave for a disability even where the employer does not offer leave to other employees. The guidance also addresses common issues for employers including existing leave policies, maximum leave policies, and claiming undue hardship.
Existing Leave Policies
The guidance states that if an employee requests leave related to a disability and the leave falls within the employer's existing leave policy, it should treat the employee making the request the same as an employee who requests leave for reasons unrelated to a disability. In other words, if an employer provides sick leave as well as annual leave that may be used for any purpose, an employer may not require an employee to designate leave as sick time simply because it is being used for a purpose related to a disability, as doing so would deny the employee use of annual leave due to his or her disability.
Further, the guidance stresses that because “the purpose of the ADA's reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work” (emphasis in original), an employer must consider unpaid leave as a possible reasonable accommodation even when:
- the employer does not offer leave as an employee benefit;
- the employee is not eligible for leave under the employer's policy; or
- the employee has exhausted the leave the employer provides as a benefit (including leave under the FMLA or similar state or local laws or under a workers' compensation program).
Maximum Leave Policies Don't Apply
Just because employers have a leave policy with a “maximum” amount of leave doesn't mean that they can enforce that “maximum” when an employee requests leave as a reasonable accommodation. The ADA requires employers to make exceptions to certain policies as reasonable accommodations, and the Guidance reinforces this requirement.
The EEOC warns that when an employee runs up against a maximum leave policy, employers should stay away from form letters that instruct an employee to return to work by a certain date or risk termination. Instead, the EEOC urges employers to contact the employee and inquire whether or not the employee needs additional unpaid leave as a reasonable accommodation.
Claiming Undue Hardship
That an employee's leave of absence has already exceeded the FMLA entitlement doesn't establish undue hardship. Similarly, leave that exceeds the employer's maximum leave policy doesn't satisfy the ADA undue hardship standard. On the other hand, the EEOC makes clear that indefinite leave—where the employee cannot say when, if ever, he or she will be able to return to work—does constitute undue hardship.
But what about an employee's request for leave somewhere between a few days or a week to indefinite leave? In that case, the EEOC suggests that employers consider a variety of factors when determining undue hardship:
- the amount of leave required;
- the frequency of the leave;
- whether the employee has any flexibility with days on which leave is taken;
- whether the need for leave is predictable or unpredictable;
- the impact of the employee's leave on coworkers; and
- the impact on the employer's operations and ability to serve customers and clients.
Although the EEOC's new guidance doesn't change the EEOC's position on leave as a reasonable accommodation or offer clear guidance for employers on when to permit leave or claim undue hardship, it signals the EEOC's continued focus on this issue. To discuss the EEOC's latest guidance, or any of California's employment related laws, feel free to contact leading California employment lawyers at Kingsley & Kingsley. Call toll-free at (888) 500-8469 or click here to contact us via email.