EEOC disability discrimination charges have reached an all time high and, according to the Commission, it’s employers who are to blame. The charges, the EEOC says, show a “troubling trend” indicating employers may not understand the Commission’s positions on leave and the ADA.
In response to these concerns, the EEOC released a new resource document titled: Employer Provided Leave and the Americans with Disabilities Act. While the document answers some tough questions, it arguably raises new ones as well. For example, at what point does an employer’s obligation to provide leave ever end? Below are key highlights from that document that all employers should review:
Equal Access to Leave Under an Employer’s Leave Policy
- Requests for leave based on a disability must be treated the same as requests for leave based on other reasons. For example, an employer may not request a doctor’s note for leave based on a disability unless it requires a doctor’s note for all leave requests under the same policy.
Granting Leave as a Reasonable Accommodation
- Unless providing leave would cause an undue hardship, an employer must consider granting unpaid leave as a reasonable accommodation even when:
- Leave is not offered as an employee benefit;
- An employee is not eligible for leave under an employer’s policy; or
- An employee has exhausted leave provided as a benefit (worker’s comp, FMLA, or related State leave).
The Interactive Process: Communication Following a Request for Leave
- If leave is not available under an employer policy, the employer and employee must engage in an “interactive process” to determine whether granting leave will cause an undue hardship. Discussion should focus on:
- The specific reason for leave;
- Whether continuous or intermittent leave is requested;
- The leave end date (if known).
- An employer (with employee permission) may request information from the employee’s health care provider to clarify the specifics of the leave request.
The Interactive Process: Communication During Leave
- The interactive process may continue after leave is granted if a return to work date has not been set.
- An employer may not request periodic updates if leave is granted with a fixed return date. It is ok to check on an employee’s progress though.
Return to Work
- An employer may not require an employee to be “100%” healed or recovered to return to work if job functions can be performed with a reasonable accommodation.
- If an employee returns with work restrictions, the interactive process should be used to determine possible accommodations. Discussion should focus on:
- Specific accommodations requested;
- Reason for the accommodation or restriction;
- Length of time the accommodation will be needed;
- Alternative accommodations; and
- Whether the accommodations pose an undue hardship.
Undue Hardship
Factors an employer may consider when assessing undue hardship:
- Amount or length of leave required;
- Frequency of leave;
- Whether there is flexibility regarding the days leave is requested;
- Whether intermittent leave is predictable or unpredictable;
- Impact on coworkers; and
- Impact on employer’s operations, including the ability to serve clients in a timely manner.
Fortunately, the EEOC did reaffirm that indefinite leave — meaning that an employee cannot specify whether or when he or she will be able to return to work — will constitute an undue hardship on the employer. This means that an employer need not provide an open-ended, indefinite leave of absence as a reasonable accommodation.