On May 9, 2016, the U.S. Equal Employment Opportunity Commission issued a new resource document addressing the rights of employees with disabilities who seek leave as a reasonable accommodation under the Americans with Disabilities Act.  According to the EEOC, the document does not create a new agency policy, but is a resource document explaining how existing EEOC policies and guidance apply to specific situations.  It is intended to consolidate the existing guidance on ADA and leave into one document, and to address issues that frequently arise regarding leave as a reasonable accommodation.  In addition, the document addresses undue hardship issues and the amount or length of leave required, the frequency of leave, the predictability of intermittent leave, and the impact of such leave on an employer’s operations.

The resource document provided by the EEOC indicates that some employers may not know that they have to modify existing policies that limit the amount of leave employees can take when an employee with a disability needs additional leave as a reasonable accommodation.  It also addresses the fact that employer policies which require those on extended leave to be 100% healed and able to work without restrictions before returning to work may violate the ADA.

Generally, when an employee with a disability requests leave for a medical condition, the employer must treat the request as a request for reasonable accommodation under the ADA.  However, if the request can be addressed by an existing leave program the employer may provide leave under such program.  When existing leave programs do not satisfy the needed leave, an employer must engage in the interactive process with the individual requesting the leave.  The EEOC advises that the focus of the interactive process should be on the specific reasons why the individual needs leave; whether the leave will be for a block of time or intermitted; and when the need for leave will end.  Based on the responses to these inquiries, an employer can access whether or not the need of leave would create an undue hardship.  In situations where the employee’s request does not specify an exact or fairly specified return date or in situations where an individual requires additional leave beyond that which was originally granted, the interactive process may continue.

While employers may have leave policies that establish the maximum amount of leave an employer will provide, they may also have to make exceptions to those policies as an accommodation to employees with disabilities.  Specifically, employers must consider providing unpaid leave to an employee with a disability as a reasonable accommodation in situations where the employer does not offer leave as an employee benefit, where an individual is not eligible for leave under the employer’s existing policies and in situations where an employee has exhausted all leave that is provided as a regular benefit of employment.  Furthermore, employers cannot penalize employees for taking additional leave as a form of accommodation.

Employers are not required to provide paid leave beyond what exists as part of the regular leave policy and may have policies that uniformly require all employees to provide a doctor’s note or other documentation to substantiate the need for leave.  Additionally, employers may deny a request for leave if granting such request would cause the employer to suffer an undue hardship. In determining whether a leave creates an undue hardship, an employer should consider the amount and/or length required; the frequency of the leave; whether there is any flexibility with respect to which day of the leave is taken; whether the need for intermittent leave is predictable or unpredictable; the impact of the employee’s absence on others and on the job duties that need to be performed; and the impact on the employer’s operations and ability to serve customers in a timely manner.  If an individual needs indefinite leave and cannot say whether or when he will be able to return to work, the employer does not need to accommodate the leave request.  The EEOC has taken the position that indefinite leave constitutes an undue hardship.

In the newly released resource document, the EEOC also addressed the use of form letters to communicate with employees who are nearing the end of the leave provided under their company’s leave program.  The Commission has indicated employers may rely on form letters, but recommends that such letters include language that advises employees that any need of additional unpaid leave as a reasonable accommodation for a disability should be requested as soon as possible.  Employers who rely on third-party providers to handle leave programs are encouraged to make sure that any letters that are generated by the third-party provider comply with the employer’s obligations under the ADA.

In addition, the Commission advises that an employer will be found to have violated the ADA if it requires an employee with a disability to be 100% healed or recovered before returning to his job.  If that employee can perform the job with or without a reasonable commendation.  Absent proof that the individual is a direct threat, an employer is unlikely to show that an individual’s medical restrictions pose a safety risk.

According to the EEOC, if an individual returns from a leave of absence with restrictions, an employer may ask why the restrictions are required and how long they might be needed.  In those situations where it is necessary, an employer should initiate the interaction process and explore the specific accommodations that are needed; the reason why accommodation or work restriction is needed; the length of time an employee will need the accommodation; possible alternative accommodations; and whether any of the accommodations would cause an undue hardship.

The EEOC has also noted in certain situations that the requested accommodation could be reassignment to a new job.  It is the EEOC’s position that if reassignment is required, an employer must place the employee in a vacant position for which he is qualified, without requiring the employee to compete with other applicants for open positions.  However, reassignment does not include promotions.

The EEOC employer-provided leave and the Americans with Disabilities Act resource document includes certain specific examples to assist employers in assessing the appropriateness of leave accommodations.  A copy of the resource document is available and may be accessed here.