EEOC Issues New Guidance on Leave as a Reasonable Accommodation

Title I of the Americans with Disabilities Act of 1990 (ADA) allows an employee unpaid leave as a reasonable accommodation, unless providing unpaid leave would cause an employer undue hardship. However, how much leave is reasonable is a complex issue for employees and employers alike. The Equal Employment Opportunity Commission (EEOC) has recently issued a new resource document to help provide guidance on common issues such as intermittent leave, extended leave and how much leave is reasonable. While there are many important topics in the new resource, employees should be aware of the following key points.

First, it is the EEOC’s position that employees must be given equal access to leave under an employer’s existing paid-leave policies. This means that an employer must treat an employee who requests leave for a disability-related reason, under an existing paid leave policy, the same as any other employee requesting leave for non-disability-related reasons. Employers may not require employees requesting disability-related paid leave to fulfill any additional requirements in order to qualify for the leave.

Second, employers must consider unpaid leave as a reasonable accommodation. The EEOC states:

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. That is the case even when:

• the employer does not offer leave as an employee benefit;
• the employee is not eligible for leave under the employer's policy; or
• the employee has exhausted the leave the employer provides as a benefit (including leave exhausted under a workers' compensation program, or the FMLA or similar state or local laws).

Note, an employer is not required to provide paid leave beyond what it provides as part of its paid-leave policy.

Finally, employers must treat all requests for leave for medical conditions as a request for a reasonable accommodation under the ADA. If the leave can be granted under the employer’s own policies or by other means, such as the Family Medical Leave Act, then an employer may do so. However, if not, the employer must engage in an “interactive process” – “A process designed to enable the employer to obtain relevant information to determine the feasibility of providing the leave as a reasonable accommodation without causing an undue hardship.”

Employees need to be aware of their rights when and if they ever request leave for a medical reason. An employer may not simply deny such requests because they are outside the scope of their leave policies.

If you need assistance with requesting leave as a reasonable accommodation, the attorneys at Lebau & Neuworth are experienced in handling requests for reasonable accommodations. Contact us (410) 296-3030 or lebauneuworth.com/contact-us.