On May 9, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued a new guidance document addressing the intersection of employer-provided leave of absence and the Americans with Disabilities Act (ADA). This document does not create any new EEOC agency policy or propose any new law; rather, it consolidates current guidance on the ADA, employer leave policies, reasonable accommodations, the interactive process, undue hardship, and other relevant sub-topics. It appears the motivation behind this document stems from the overall rise in disability-related charges of discrimination filed with the EEOC, which increased over 6% from fiscal year 2014 to 2015. Moreover, recent charges received by the EEOC indicate employers may not know they should consider modification of leave policies as a reasonable accommodation of an employee’s disability.

Overview of new EEOC guidance document

While the EEOC guidance document is not binding law, employers should take it into consideration when making decisions related to leaves of absence. Here are some highlights from the document:

• When it comes to annual leave, whether allotted sick days or personal days, employers should treat employees with disabilities the same as other similarly situated employees. For example, if the employer offers four paid sick leave days each year to all employees with no conditions attached, an employer should not require an employee with a disability to provide a doctor’s note to use the paid sick leave, while another employee who has a cold does not have to.
• A reasonable accommodation of a disability may be a leave of absence. An employer should provide leaves of absence consistently, whether the employee has a disability or not. Moreover, an employer may need to consider providing unpaid leave to a disabled employee as a reasonable accommodation, if it does not create an undue hardship.
• A disabled employee’s request for leave should be treated as a request for a reasonable accommodation. An employer may provide leave to the employee under the employer’s existing leave program, the FMLA, workers’ compensation, etc.; however, if the leave cannot be granted under any other program, the employer should nevertheless engage in the interactive process to determine whether some other form of leave is feasible or creates an undue hardship.
• Employers may need to consider exceptions to their maximum leave policies as a reasonable accommodation for a disabled employee. For example, an employer may only allow 12 weeks of FMLA leave per year, whether continuous or intermittent, and only a certain number of unplanned or unexcused absences per year. Depending on the circumstances, an employer might consider making an exception to these rules for a disabled employee if it would not cause an undue hardship.
• The interactive process applies to a disabled employee’s request to return to work. Indeed, an employee may need a reasonable accommodation – e.g.: modification of duties or work schedule – in order to return to her former position. If the accommodation is not an undue hardship, and if the employee’s restriction does not cause a “direct threat” to safety, the accommodation may be an appropriate avenue to allow the employee to return to work.

Reminder of the interplay between the FMLA and ADA

Although not explicitly mentioned in the EEOC’s guidance document, employers should remember the complex interplay between the FMLA and the ADA. Although the FMLA and ADA are separate bodies of law, they may nevertheless both be implicated by the same employee for a single medical condition.

There are certain requirements under the FMLA an employee must meet in order to be eligible for and entitled to leave, while the ADA has no such eligibility requirements. What qualifies as a “serious health condition” under the FMLA may not make the same employee a “qualified individual with a disability” under the ADA. However, in spite of these differences, some employees will be a qualified individual with a disability and also an eligible employee entitled to FMLA leave, which requires the employer to comply with both statutes simultaneously. Thus, when an employee requests time off for a health-related condition, the employer must evaluate the employee’s rights under all potentially applicable statutes, including the ADA and FMLA, and must typically provide the employee with the “greater right” available. For example, even if an employee has exhausted all of her FMLA leave, she may still be entitled to additional leave time or a part-time schedule if it would be a reasonable accommodation of her disability, and not an undue hardship on the employer.

Reasonableness of a leave of absence under the ADA

It is also important to note that while a leave of absence may be a potentially reasonable accommodation of an employee’s disability, employers are not expected to grant indefinite leaves of absence. To be sure, there are two limits on the bounds of reasonableness for a leave of absence. The first limit is clear: The employee must provide the employer an estimated date when she can resume her essential duties. Without an expected end date, an employer is unable to determine whether the temporary exemption is a reasonable one. The second is durational. A leave request must assure an employer that an employee can perform the essential functions of her position in the “near future.” For example, a six-month leave request may be considered too long to be a reasonable accommodation.

Physical attendance as an essential job function

Remember that an employee must be able to perform the “essential functions” of her job, even with a reasonable accommodation. Essential functions are the fundamental job duties of the particular employment position at issue, and are usually determined based on the employer’s judgment, job descriptions, and policies. Often, physical and regular attendance in the workplace can be considered an essential function of the job. An accommodation that allows a leave of absence when physical attendance is essential to the job may not be considered reasonable if it has an impact on the employer’s operations or the ability of other employees to perform their assigned duties.

Conclusion

Do not hesitate to speak with an employment attorney when faced with questions about an employee’s requested leave of absence. In this age of remote access to the workspace, telecommuting, broad coverage in favor of finding an employee disabled, generous leave of absence policies, and third-party administrators of leave, it can be tricky for an employer to determine its legal responsibilities and effectively navigate through the federal laws to provide the employee with the right option.