ADA GUIDANCE ISSUED BY EEOC, EXPLAINING EMPLOYER OBLIGATIONS TO PROVIDE LEAVE TO DISABLED EMPLOYEES AS A REASONABLE ACCOMMODATION

by Employment Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
P.O. Box 537
Walpole, MA 02081
Tel. 508 850-9800
FAX 508 850-9801
Email: Llockard@leslielockard.com
Website: www.LeslieLockard.com
May 21, 2016

The Equal Employment Opportunity Commission (EEOC) recently issued a reasonable accommodation “Resource Document”, describing its current view of what employers can and cannot do in providing leave to disabled employees. It is entitled “Employer-Provided Leave and the Americans With Disabilities Act”, and can be accessed on the EEOC.gov website. The ADA applies to employers of fifteen or more employees. (A similar Massachusetts state law applies to employers of six or more employees). In general, covered employers must provide leave to employees who are unable to work due to a disability, or who need to undergo or recover from disability related medical treatment—unless doing so would cause the employer “undue hardship”. The EEOC emphasizes that “the purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work”.

Among the disability leave “dos and don’ts” described in this ADA “Resource Document” are the following:
  1. “100% Healed” Return-to-Work Requirements: Employers generally cannot require an employee on leave due to a disability to be 100% healed in order to return to work, if the employee can do the job either with or without a reasonable accommodation.
     
  2. Reassignment to a vacant position: If an employee can no longer do the essential functions of his/her job even with reasonable accommodation, the employer generally must consider whether there is a vacant position for which the employee is qualified. If there is, the employee generally must be placed in that position, without being required to compete against other applicants for open positions. However, the employee need not be promoted, nor must the employer reassign a disabled employee to a position to which another employee is entitled under a uniformly applied seniority system.
     
  3. Granting leave as a reasonable accommodation even if the employee is not eligible for or has used all available leave: Employers must consider providing leave to a disabled employee, if that can be done without “undue hardship”, even if the employee is not eligible for leave under applicable leave laws or the employer’s policies, or has already exhausted any leave to which the employee is entitled. For example, an employer must consider providing leave as a reasonable accommodation (absent “undue hardship”) even if:

    --the employee has not worked long enough to become eligible for the employer’s leave policies,

    --the employee does not work enough hours per week to be eligible for the employer’s leave policies,

    --the employee has already used up all “sick time” and FMLA leave for which he/she is eligible.
     
  4. Obligation to Engage In An Interactive Process When Leave is Requested: If an employee who seeks leave due to a disability is not eligible for leave under leave laws or the employer’s leave policies, the employer generally must engage in an “interactive process” with the employee to obtain “relevant information to determine the feasibility of providing the leave as a reasonable accommodation, without causing undue hardship”. “Relevant information” may include, for example:

    --information to confirm that the condition is a disability under the ADA (if there is doubt about this)

    --the specific reason(s) the employee needs leave (for example, surgery and recuperation, adjustment to a new medication regimen, training of a new service animal, doctor visits or physical therapy);

    --whether the leave will be a block of time (for example, three weeks or four months), or intermittent (for example, one day per week, six days per month, occasional days throughout the year); and

    --when the need for leave will end.
     
  5. Obtaining Information from the Employee’s Doctor: An employer generally can obtain information from the employee's doctor (with the employee's permission) to confirm or to elaborate on information the employee has provided. Employers may also ask the doctor to respond to questions designed to enable the employer to understand the need for leave, the amount and type of leave required, and whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave). An employee requesting leave as a reasonable accommodation should respond to questions from an employer as part of the interactive process and work with his/her doctor to obtain requested medical documentation as quickly as possible.
     
  6. Inquiry Permitted If Employee Returns To Work With Medical Restrictions: If an employee returns from a leave of absence with medical restrictions, the employer can generally ask the employee and/or the employee’s doctor what specific accommodations the employee needs, why the accommodations are needed, how long they may be needed, and whether other possible accommodations might effectively meet the employee's disability-related needs.
     
  7. Inquiry Permitted If An Employee Seeks An Extension Of A Disability Related Leave: If an employee seeks more leave, beyond that already granted, the employer can generally inquire of the employee and/or the employee’s doctor why the extension is needed, and how likely it is that the employee will be able to return to work if the additional leave is granted.
     
  8. Maximum (“No fault”) Leave Policies: Employers can have policies specifying a maximum amount of leave employees can take, but employers must grant employees who need leave due to a disability more than the limit unless the employer can show that doing so would cause “undue hardship”. The fact that the leave will exceed the employer’s maximum is not sufficient in itself to show “undue hardship”. The EEOC “Resource Document” states that employers sometimes use "form letters" to communicate with employees who are nearing the end of leave which instruct them to return to work by a certain date or be terminated. “Employers who use such form letters may wish to modify them to let employees know that if they need additional unpaid leave as a reasonable accommodation for a disability, the employee should ask for it as soon as possible so that the employer may consider whether it can grant an extension without undue hardship”.
     
  9. Requests for Additional Leave Beyond The Employer’s Maximum: If an employee requests additional leave that will exceed an employer's maximum leave policy (whether the leave is a block of time or intermittent), the employer can engage in an “interactive process”, including obtaining medical documentation specifying the amount of the additional leave needed, the reasons for the additional leave, and why the initial estimate of a return date proved inaccurate. An employer may also request relevant information to assist in determining whether the requested extension will cause an undue hardship.
     
  10. The Employee’s Doctor Isn’t Necessarily Required to Provide An Exact Return To Work Date, But An Employer Need Not Grant An “Indefinite” Amount of Leave: The EEOC “Resource Document” states: “In some instances, only an approximate date (for example, "sometime during the end of September" or "around October 1") or range of dates (for example, between September 1 and September 30) can be provided. Sometimes, a projected return date or even a range of return dates may need to be modified in light of changed circumstances, such as where an employee's recovery from surgery takes longer than expected. None of these situations will necessarily result in undue hardship, but instead must be evaluated on a case-by-case basis. However, indefinite leave -- meaning that an employee cannot say whether or when she will be able to return to work at all - will constitute an undue hardship, and so does not have to be provided as a reasonable accommodation.
     
  11. The Time Employees Are On Disability Related Leave Cannot Be Counted Against Them In Evaluating Their Productivity: The “Resource Document” states that employers cannot penalize employees for taking a disability related leave of absence. For example, in evaluating productivity in performance reviews, the supervisor should evaluate the employee's productivity during the months (s)he did work, disregarding lack of productivity while the employee was on a disability related leave.







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Contact Info

Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
P.O. Box 537
Walpole, MA 02081
Tel. 508 850-9800
FAX 508 850-9801
Email: Llockard@leslielockard.com
Website: www.LeslieLockard.com