EEOC Issues New Resource Document Addressing Issues Related to Leave and Disability

On May 9, 2016, the Equal Employment Opportunity Commission
(EEOC) issued a new resource document, titled Employer-Provided
Leave and the Americans with Disabilities Act
that is intended
to educate employers and employees about the use of leave as a reasonable
accommodation under the American with Disabilities Act (ADA). 

According to EEOC, this resource document comes at a time
when disability charges filed with the agency reached a new high in fiscal year
2015?up 6% from the previous year.  EEOC
claims to have identified an uptick in employer policies that ?deny or
unlawfully restrict the use of leave as a reasonable accommodation,? which
often acts as ?systemic barriers to the employment of workers with
disabilities.?

The EEOC has long acknowledged employer confusion around the
issue of leaves of absence under the ADA.  The Commission held a meeting on the subject
matter in 2009 where it discussed the need for additional guidance.  The resource document does not create any new
agency policies and consolidates existing EEOC policies and guidance into one
place.  It also provides numerous detailed examples illustrating when and
how leave must be granted for reasons related to an employee?s disability.  Although
the resource document was not voted on by the Commission and cannot be
considered official EEOC guidance, it is still worthy of employer?s attention.  The guidance is divided into the following
subject areas: 

  • Equal Access to Leave
    Under an Employer?s Leave Policy ? Employers must provide employees with
    disabilities access to leave on the same basis as all other
    similarly-situated employees.  If an employer does not place
    conditions on its employees? use of paid leave it cannot impose conditions
    on an employee who is seeking to use paid leave for reasons related to a
    disability.
  • Granting Leave as a
    Reasonable Accommodation ? Employers 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.
  • Leave and the
    Interactive Process Generally ? Employers must engage in an ?interactive
    process? with an employee who requests leave as a reasonable
    accommodation, which should focus on the specific reason(s) the employee
    needs leave, whether the leave will be a block of time or be intermittent,
    and when the need for leave will end.  Employers should treat an
    employee with a disabilities request for medical leave which is not
    otherwise covered by the employer?s existing policy or law (e.g., FMLA, state and local law,
    workers compensation) as a request for a reasonable accommodation and engage
    in the interaction process.
  • Maximum Leave Policies ?
    While employers are allowed to have policies that set a maximum amount of
    leave, they may have to grant additional leave as a reasonable
    accommodation to employees who require it because of a disability, unless
    the employer can show that doing so will cause an undue hardship.
  • Return to Work and
    Reasonable Accommodation ? An employer cannot require an employee with a
    disability to be ?100 percent? healed or recovered if the employee can
    perform his or her job with or without reasonable accommodation, unless
    the employer can show providing the needed accommodations would cause an
    undue hardship.
  •  
    Reassignment ? An employer must reassign
    employees who are unable to return to their existing job due to a disability to
    a vacant position for which the employee is qualified.  The employee
    should not have to compete with other applicants and should be reassigned to a
    vacant position absent a uniformly applies bonafide seniority system.
  • Undue Hardship ? In
    deciding whether to grant leave as a reasonable accommodation, employers
    should consider factors such as the amount and/or length of leave
    required, the frequency of the leave, the impact of the employee?s absence
    on coworkers and on whether specific job duties are being performed in an
    appropriate and timely manner, and the impact on the employer?s operations
    and its ability to serve customers/clients appropriately and in a timely
    manner.  A request for ?indefinite leave? when an  employee
    cannot say whether or when she will be able to return to work at all, will
    constitute an undue hardship and does not require a reasonable
    accommodation.

 Please contact your FortneyScott attorney for any questions you may have relating to this topic.