Leave as an Employment Accommodation

Related article: 5 Tips for Creating a More Disability Inclusive Culture

Eugene asks to meet with the human resource office. During the meeting, he tells them that he needs to have back surgery to alleviate chronic pain due to a slipped disc. He requests time off for the surgery and rehabilitation, but he is unsure how much time he will need. Must employers provide time off as an accommodation under the ADA, and if so, how much time must they provide?

Disability leave under the ADA has been a hot topic lately. A reasonable accommodation is, generally, “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” One of the more confusing reasonable accommodation issues that employers face under the ADA is permitting the use of accrued paid leave, or providing unpaid leave, when an employee’s disability necessitates it. The concept can be difficult to grasp because it does not align with the idea of providing an accommodation that keeps an employee on the job. However, leave, as a reasonable accommodation is consistent with this purpose when it enables an employee to return to work following the period of leave.

Requests for leave related to disability often fall under existing employer policies. In those cases, the employer’s obligation is to provide employees with disabilities access to those policies on equal terms for any other employee. Reasonable accommodation does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy. However, that is not the end of an employer’s obligation under the ADA.

In a May 2016 resource document, the EEOC suggests that an employer may consider providing unpaid leave to an employee with a disability as a reasonable accommodation if it does not create an undue hardship for the employer.
For example, an employer provides 10 days of paid annual leave and four days of paid sick leave each year to employees who have worked for the company fewer than three years. After three years, employees are eligible for 15 days of paid annual leave and eight days of paid sick leave.

An employee who has worked for only two years has used his 10 days of paid annual leave. He now wants to use his four days of sick leave plus an additional two days for treatment for his disability. Under its leave program, the employer must provide the employee with four days of paid sick leave but may refuse to provide an additional two days of paid leave because the employee has not worked long enough to earn this benefit. However, the employer could provide two additional days of unpaid sick leave as a reasonable accommodation unless it can show that providing the two additional days would cause undue hardship.

As a rule, the employee with a disability must inform the employer that an accommodation is needed. When an employee requests leave, or additional leave, for a medical condition, the employer must treat the request as one for a reasonable accommodation under the ADA. If the request for leave can be addressed by an employer’s leave program, the FMLA (or a similar state or local law), or the workers’ compensation program, the employer may provide leave under those programs.

Leave for a disability may be taken:

• to attend medical appointments
• to obtain medical treatment
• to recuperate from surgery
• when there is an exacerbation of a medical condition
• when an employee is not eligible for leave under the Family Medical Leave Act (FMLA) but has a qualifying disability under the ADA
• when an FMLA eligible employee needs additional time beyond FMLA
• when an employee has exhausted paid vacation and sick leave

Maximum Leave Policies
The ADA requires that employers with 15 or more employees make exceptions to their policies, including leave policies, in order to provide a reasonable accommodation. Unlike the twelve-week maximum leave allowed under the FMLA, the ADA provides no statutory or regulatory parameters indicating the amount of additional leave that must be provided. Although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, they may have to grant leave beyond this amount 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.

Whereas the EEOC has consistently maintained that leaves of absence should be considered as a form of reasonable accommodation under the ADA, the courts are divided on this issue. In August 2009, the EEOC filed a class action lawsuit in an Illinois district court (7th Circuit) against United Parcel Service (UPS) alleging that the employer violated the ADA with its allegedly inflexible policy of terminating employees rather than further extending their leave when they were unable to return to work after one year. UPS settled the lawsuit for $2 million.

In a September 2017 decision in Severson vs. Hartline Woodcraft, Inc., the 7th Circuit Court of Appeals rejected the EEOC’s position. The court reasoned that offering a finite multi-month ADA leave to begin at the expiration of FMLA leave is not a reasonable accommodation. Although this may be viewed as a victory for employers, it is important to note that the 7th Circuit did not reject all leave as a reasonable accommodation. Moreover, this decision only affects employers in Indiana, Illinois, and Wisconsin. The EEOC has recently filed another lawsuit involving leave as an accommodation – EEOC Sues Blood Bank of Hawaii for Disability Discrimination. This case is in the 9th Circuit and will affect the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington and the territories of Guam and the Northern Mariana Islands.

What Should Employers Consider When Extended Leave is Requested?
There are several factors that may help employers determine whether a request for extended medical leave is reasonable accommodation:

• focus on the position, not the employee.
• if the positon is not filled, what will the impact be on the business?
• how many other employees are able to perform the job functions?
• will a temporary employee be needed?
• is there a projected return to work date?
• would this result in undue hardship?
• get information from the employee’s physician about what objective medical basis exists to support the belief that the leave will enable the employee to return to work.

Author

Katie Coleman

Product Marketing Manager

Circa