Tuesday, May 10, 2016

EEOC issues new guidance on leaves of absence under the ADA

Sick LeaveWhat does the EEOC want you know about your treatment of employees’ leaves of absence under the ADA? A whole bunch, according to this guidance, published yesterday by the agency.

The guidance, aptly entitled Employer-Provided Leave and the Americans with Disabilities Act, addresses, according to the EEOC, “the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation,” which the agency believes “serve as systemic barriers to the employment of workers with disabilities.”

In my experience, employers don’t deny leaves because they are trying to discriminate against their employees. Instead, they are simply trying to do they best they can to balance the operational needs of their business against the medical needs of an employee. Sometimes, the business wins. The EEOC is trying to level the playing field by making sure that employers consider leaves in all cases when appropriate.

The guidance is broken down into six key areas, which highlight various issues for employers to consider when employees need medical leaves of absence not covered by, or in addition to, the FMLA.

1. Equal Access to Leave Under an Employer’s Leave Policy. Employers must provide employees with disabilities access to the same leaves of absence rules as non-disabled employees.

2. Granting Leave as a Reasonable Accommodation. An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.

3. Leave and the Interactive Process Generally. After an employee requests leave as a reaonable accommodation, the employer should promptly engage in an “interactive process” with the employee, a discussion that focuses on the reasons for the leave, whether it’s blocked or intermittent, and its expected duration, and which may include confirming information from the employee’s health care provider.

4. Maximum Leave Policies. Policies that place a hard cap on an employee’s leave of absence, without consideration of modifications or extensions as reasonable accommodations, are unlawful under the ADA.

5. Return to Work and Reasonable Accommodation (Including Reassignment). Avoid “100% Healed” policies, which mandate that an employee be fully recovered before returning to work and are unlawful. Instead, considered reasonable accommodations that will enable an employee to return before 100% healed, which might include transfer to a vacant position.

6. Undue Hardship. Depending on the duration and frequency of the leave, and the impact on the employer’s business, the leave of absence might be an undue hardship that an employer need not offer. An open-ended, indefinite leave is always an undue hardship; otherwise, leaves should be evaluated on a case-by-case basis.

Leave of absence issues continue to confound employers. This ADA-focused guidance, along with guidance the EEOC published last year on pregnancy accommodations, goes a long way to answering many of the questions employers will have on these thorny and risky issues.