In light of an increase in charges filed with the EEOC in which employees claim that their employers are unlawfully denying or restricting the use of leave as a reasonable accommodation, which is a "troubling trend" according to the EEOC, the EEOC has issued a new resource document entitled, Employer-Provided Leave and the Americans with Disabilities Act. The resource document provides "general information to employers and employees regarding how and when leave must be granted" as an accommodation under the ADA. The resource document also addresses the interactive process for leave accommodation requests, impermissible maximum leave policies and 100% healed policies, and the undue hardship defense as it applies to leave accommodation requests.

Equal Access to Leave and the Interactive Process

The resource document provides that employees with disabilities must be given "equal access" to leave under an employer's polices and provides several examples of such access. Employers often fail to recognize that engaging in the interactive process to determine whether it can accommodate an employee's leave request is critical, because failing to engage in that process is, by itself, a violation of the ADA. The resource document provides that an employer's obligations to engage in the interactive process begin after an employee requests leave and that those obligations continue during leave and before an employee returns to work.

Of note, the EEOC reminds employers that where an employee provides a "fixed" return to work date based on medical documentation submitted to his or her employer, the employer may not ask the employee for additional medical documentation during the period of leave. But, employers may communicate with employees to check on their "progress" during leave. For example, an employer may "phone the employee and ask how the employee is doing and whether there is anything the employee needs from the employer to help the employee recover and return to work." Employers may and should also reach out to employees prior to the end of leave to determine whether the employee can return to work, with or without accommodations and/or to determine if the employee needs further leave as an accommodation. The question that is difficult to answer, and which the EEOC fails to address directly is how much leave is "reasonable."

Maximum or "No Fault" Leave Policies

In the resource document, the EEOC states that employers may maintain such policies; however, the EEOC reminds employers that they may have to modify those policies for employees with disabilities, unless the employer can establish an undue hardship defense. For example, an employee who exhausts FMLA, or who is not otherwise entitled to leave under the FMLA, may be entitled to a leave accommodation under the ADA. In such a case, the employer would be obligated to engage in the interactive process. The EEOC has filed class action lawsuits against employers who apply rigid maximum or no fault leave policies regardless of an employee's disability. Not so long ago, Verizon Communications settled such a lawsuit for $20 million. Another suit settled for $3.2 million dollars, and the EEOC also recovered $400,000 in attorneys, fees.

100% Healed Policies

Employers who require employees to return to work "100% healed" — that is, maintain a policy requiring employees to return to work with no medical restrictions — violate the ADA. Why? Because the ADA requires that employers explore whether the employee can perform his or her essential job functions with or without reasonable accommodations. Shortchanging the interactive process by requiring employees to return to work "healed," will no doubt get an employer in trouble under the ADA. Recently, a nationwide trucking company settled an ADA suit brought by the EEOC for $4.85 million dollars. That company terminated employees under the challenged leave policy if an employee needed more than 12 weeks of leave, and the EEOC alleged that the company violated the ADA by refusing to make exceptions to its "no restrictions" policy. Under that policy, if an employee had restrictions, the company refused to allow them to return to work and failed to determine whether reasonable accommodations could be made that would allow the employee to return to work with medical restrictions.

Undue Hardship

When does leave constitute an undue hardship under the ADA? This question is the toughest for employers to consider and answer. The EEOC's resource document provides that employers should consider the following factors:

1. The amount of leave required;
2. The frequency of the leave;
3. Whether any flexibility exists regarding days on which leave must be taken;
4. Whether the need for intermittent leave is predictable or unpredictable;
5. The impact of the employee's absence on co-workers;
6. The impact on the employer's operations and its ability to serve its customers.

On a positive note for employers, the EEOC states that an undue hardship would exist where an employee, or the employee's medical provider, cannot provide a definitive date on which the employee can return to work — "meaning that the employee cannot say whether or when she will be able to return to work at all."

So, it is time to check your company's leave practices to ensure that those practices and policies are compliant with the ADA. Employers should also review their light duty programs and practices to ensure that those programs are also ADA compliant. As importantly, employers should train supervisors and managers regarding the company's obligations under the ADA.