The Equal Employment Opportunity Commission (EEOC) has been busy this spring, issuing guidance left and right! On May 9th, it issued guidance to employers about leave as an ADA accommodation.  On May 16th, it issued its Final Rule on wellness programs.  Then, on June 2nd, it issued proposed guidance on national origin discrimination.  We will highlight each of these in posts throughout the remainder of June.

May 9, 2016 – Employer-Provided Leave and the Americans with Disabilities Act

The EEOC issued guidance on leave as an accommodation under the Americans with Disabilities Act (ADA) because it receives charges of discrimination indicating that employers do not understand that leave can be an accommodation for individuals with disabilities. The EEOC guidance requires employers to provide individuals with disabilities with access to leave on the same basis of all similarly-situated employees.  It requires that employers consider granting unpaid leave as an accommodation even when leave would not otherwise be available or granted.  Also, an employer may not penalize an employee for using leave as a reasonable accommodation.

Specifically, the EEOC suggested employers should: 1) offer leave as an accommodation even when an employer would not offer leave to other employees; 2) modify leave policies to offer additional leave as an accommodation; 3) offer additional leave as an accommodation beyond maximum leave policies; 4) offer light duty or temporary reassignment of position to accommodate an employee who can return to work but with restrictions rather than requiring employees be “100% healed” to return. In the case of reassignment, the employee must be placed in a vacant position for which he or she is qualified and not be required to compete with other applicants for the position.

The EEOC does acknowledge that it is up to the employee with a disability to first request the accommodation for leave or additional leave. If the employer can grant the request under some already-existing leave program, then the employer should do so.  However, if no other leave policy applies, then the employer should engage in an “interactive process” with the employee to determine what accommodation can be made.  The employer is permitted to ask about the specific reason for the leave, whether the leave will be taken in a block of time or sporadically, and when the need for leave will end.  An employer may obtain additional information from the employee’s medical provider, with the employee’s permission, although the request should be limited to confirming the need for leave, whether accommodations other than leave could resolve the issue, and how long the leave will last.

Although an employer can inquire about how long leave will last, the EEOC guidance suggests that an employer should consider granting leave even if the length of time needed is initially unknown. An employer who has granted leave with a fixed return date cannot ask for periodic updates, and an employer must not use form letters to tell an employee his or her leave is ending and he or she must return to work or be terminated.

Employers will be glad to know that the EEOC did say they can require employees to provide information from their provider to assist in the process and that employees must be responsive to questions the employer asks and obtain medical documentation quickly from his or her provider.

The EEOC acknowledged that an employer could deny leave but only upon showing of an undue hardship on its business operations or finances. Undue hardship involves consideration of the following factors: 1) amount or frequency of leave requested; 2) whether there is any flexibility with respect to what days the leave is taken; 3) whether the days of leave are predictable or unpredictable; 4) the impact of the employee’s absence on coworkers; 5) whether the employee’s absence has an effect on specific job duties being performed in an appropriate and timely manner; and 6) the impact on the employer’s operations and its ability to serve customers and clients appropriately and in a timely manner, taking into account the size of the employer.

I am so often advising employers who struggle to determine how much additional leave is required in order to comply with the ADA, and they are understandably frustrated that there is no definite guidance on how much is enough. This is one of the biggest “gray area” issues with  accommodations that employers face and, unfortunately, the guidance doesn’t specifically address that issue with any certainty.

However, the guidance does offer help to employers because the EEOC states that undue hardship is satisfied (and thus no accommodation is needed) if an employee is unable to say whether or when the employee will be able to return to work. This is a common problem for employers when they request a return date after FMLA leave has been exhausted and an ADA accommodation period has been granted.  The EEOC also makes it clear that employees must cooperate with employers who seek to verify the disabling condition and obtain information about the accommodation from the employee’s medical provider.

Click here to view the guidance.