Wednesday, October 5, 2016

Don’t ignore unpaid leaves as a reasonable accommodation

Two recent EEOC lawsuits (here and here) illustrate the risk employers continue to take when they deny unpaid leaves of absence to employees as a reasonable accommodation under the ADA.

  • A Detroit casino operator violated federal law by denying a reasonable accommodation to and then firing an employee because of his disability. According to EEOC’s lawsuit, Michael Lepine was a pit manager in the table games department for Greektown Casino. In February 2012 he was hospitalized for his stress-anxiety disorder and requested a leave extension until April 30. The employer refused the extension and fired him on April 2.

  • Harrison Poultry, Inc., a poultry hatchery located in Bethlehem, Ga., will pay $100,000 and furnish other relief to settle a disability discrimination lawsuit. EEOC filed suit in 2014 charging that Harrison Poultry violated federal law when it failed to provide a manager with a reasonable accommodation for his disability and then fired him. According to the complaint, in July 2012, the manager requested a seven-day extension to his previously approved vacation leave to comply with his doctor’s orders restricting him from working during that time. EEOC charged that instead of granting the manager’s request for additional medical leave, the company immediately fired him, before he even exhausted his vacation time.

Under the ADA, an employer must consider granting unpaid leave as a reasonable accommodation, provided that the employee actually requests the accommodation.

An indefinite leave of absence—one from which neither the employee nor his or her doctor can provide a date upon which the employee can return to performing the essential functions of the position—is per se unreasonable under the ADA. An unpaid leave of some limited duration, however, will be reasonable in most cases. 

When granting such a leave as an accommodation, have an open a dialogue with the employee and prepare to be flexible. What is reasonable will depend on the nature of your business and how the employee’s position fits into your organization. You cannot make this determination without talking to the employee, gathering medical information, and making an informed decision about what works best for your company. The bottom line is to work with the employee and the medical caregiver to determine how long an employee needs to be off work, and make the best efforts, within reason, to accommodate the necessary leave for employees who qualify for protection under the ADA.

As these two EEOC lawsuits illustrate, if you fail to consider a requested unpaid leave as an accommodation, you have almost certainly violated the ADA.