The Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis of disability in employment and requires covered employers to provide reasonable accommodations to applicants and employees with disabilities that require such accommodations due to their disabilities. In May, the Equal Employment Opportunity Commission, the federal watchdog that enforces anti-discrimination laws, issued additional guidance on the ADA and employer provided leaves.
The EEOC issued the guidance primarily to remind employers they must (1) provide equal access to company leave policies to employees with disabilities and (2) grant leaves as a reasonable accommodation. This is another example of how the current Administration is focusing on enforcement of existing laws, rather than passage of new laws.
- Remember – Treat Everyone the Same.
The EEOC points out that if an employer receives a request for leave for reasons related to a disability and the leave falls within the employer’s existing leave policy, it should treat the employee requesting the leave the same as an employee who requests leave for reasons unrelated to a disability. For instance, if an employer allows employees to use paid personal days for any purpose, it cannot force an employee who needs a day off related to a disability to use a sick day. Thus, if an employee asks to use a personal day to repair her wheelchair, the employer cannot force her to take a sick day instead.
2. You Must Grant Leave When it is a Reasonable Accommodation.
The EEOC also reminds employers the purpose of the ADA reasonable accommodation requirement is to change the way things are customarily done so as to enable employees with disabilities to work. Although somewhat counterintuitive, leaves meet this purpose as they allow employees needed time off without losing their job.
For example, 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. This is EVEN the case when:
- The employer does not offer (unpaid) leave as an employee benefit;
- The employee is not eligible for leave under the employer’s normal 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.)
However, this does not mean an employer is required to provide paid leave beyond what is provided by the company’s paid leave policies. Moreover, the employer can deny the request if the accommodation would impose an undue hardship on the company’s operations or finances. Thus the right to time off, even without pay, is not endless. However, as a word of caution, showing an undue burden is usually an uphill battle for employers and is very fact specific.
Also, as a reminder, leave as a reasonable accommodation includes the right to return to the employee’s original position. Under very limited circumstances, “comparable” positions can be offered.
Administration of employee leave is one of the most complicated areas human resources and companies face. This is because various laws such as the ADA, Family Medical Leave Act, workers’ compensation and various state or local laws are all implicated. Therefore, for complicated leave issues, we recommend employers contact Labor and Employment Counsel to navigate what can quickly become a landmine and expose the company to huge liability if navigated incorrectly.
Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
