EEOC Guidance Addresses ADA Requirement That Employers Must Offer A Leave of Absence To Disabled Employees
Employee leave of absence issues are among the most common and trickiest situations that employers face. That’s because there are a myriad of conflicting federal, state and now local laws and regulations that require employers to offer time off to employees under certain circumstances.
Typically, the issue comes up when the employer receives a “doctor’s note” from the employee’s health care provider placing the employee off work for a stated period of time. It is then up to the employer to consider whether to allow the employee to take the time off as mandated by the health care provider. In many cases, the employer either does not have a formal leave of absence policy or it has one with unlawful time restrictions on the amount of leave that may be granted.
If the employer has at least 50 employees working within a 75 mile radius, then the federal and state laws mandating 12 weeks (480 hours) of so-called “family leave” must be honored. If the leave is the result of an on-the-job accident or illness, then there are a host of other considerations under state workers’ compensation laws to consider when evaluating the employee’s time off request.
Moreover, the state and federal job bias laws which outlaw discrimination against employees with a real (or perceived) physical or mental disability mandate that the employer must “reasonably accommodate” the disabled worker by, among other things, offering the employee time off to address his or her medical needs. The only exception is where the employer can prove that the requested accommodation would cause the employer to suffer a so-called “undue hardship”. This is a very high burden. Not surprisingly, the U.S. Equal Employment Opportunity Commission (“EEOC”) rarely finds that the employer has met this obligation.
To avoid significant legal liability, the employer must know precisely when and how much medical leave is required and under what circumstances. To assist employers in navigating their obligations under the federal job bias law known as the American With Disabilities Act, the EEOC recently published a formal Guidance on the subject. Please note, however, that this information does not address the requirements under the several other state and local laws that may add significantly to the employer’s burden.
According to the EEOC, disability discrimination charges filed with the agency in fiscal year 2015 increased more than 6 percent from the previous year, reaching an all-time high. A prevailing trend among these charges are cases where employers deny or restrict the use of leave. The EEOC’s Guidance (https://www.eeoc.gov/eeoc/publications/ada-leave.cfm) addresses the use of employer-provided leave as an accommodation under the ADA and aims to provide information regarding when and how leave must be granted for reasons related to an employee’s disability.
The following FAQs highlight the key provisions of the EEOC’s guidance:
Q: Must Employers Provide Equal Access to Persons with Disabilities?
A. Yes. According to the EEOC, employees with disabilities must be provided with access to leave on the same basis as all other similarly-situated (non-disabled) employees. 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 it would treat an employee who requests leave for reasons unrelated to a disability. For example, an employer cannot require a disabled employee to provide a medical note when requesting to use sick leave if the employer otherwise does not require medical notes from nondisabled employees requesting leave under the same sick leave policy. To illustrate, the EEOC provides the following example:
An employer provides four days of paid sick leave each year to all employees and does not set any conditions for its use. An employee who has not used any sick leave this year requests to use three days of paid sick leave because of symptoms she is experiencing due to major depression which, she says, has flared up due to several particularly stressful months at work. The employee’s supervisor says that she must provide a note from a psychiatrist if she wants the leave because “otherwise everybody who’s having a little stress at work is going to tell me they are depressed and want time off.” The employer’s sick leave policy does not require any documentation, and requests for sick leave are routinely granted based on an employee’s statement that he or she needs leave. The supervisor’s action violates the ADA because the employee is being subjected to different conditions for use of sick leave than employees without her disability.
Q: Can a Leave of Absence Be a Reasonable Accommodation?
A. Yes. The EEOC Guidance stresses that employers must consider unpaid leave as a possible reasonable accommodation. Employers may be required to provide the leave, even if:
- the employer does not offer leave as an employee benefit;
- the employee is not eligible for leave under the employer’s policy; or
- the employee has already exhausted the leave the employer provides as a benefit (including any leave exhausted under a workers’ compensation program, the FMLA, CFRA, or any paid or unpaid sick leave ordinance).
Essentially, an employee’s request for leave due to a medical condition must be treated as a request for a reasonable accommodation, which in turn triggers an employer’s obligation to engage in the so-called “interactive dialogue” process with the employee. To meet this legal requirement, the employer must be able to prove that the employer and the employee actually engaged in conversation(s) designed to determine the employee’s time off needs and whether the employer could accommodate them. Reasonable accommodations may include, but are not limited to flexible scheduling, intermittent leave, and restructuring of job duties. Additionally, it is exceedingly difficult for an employer to establish that the employee’s absence will cause the employer to suffer the level of financial or other “undue hardship” required to deny the time off.
Q: When Can an Employer Deny a Request for a Leave of Absence?
A. An ADA mandated leave may be denied only when an employer can establish the leave would create an “undue hardship” for the employer. Bear in mind that the EEOC’s mindset is that employers rarely can meet this burden and that the requested leave will be required most of the time. Nonetheless, the EEOC provides the following list of factors to consider in determining whether providing leave would possibly result in an undue hardship:
- the amount and/or length of leave required;
- the frequency of the leave;
- whether there is any flexibility with respect to the days on which leave is taken;
- whether the need for intermittent leave on specific dates is predictable or unpredictable;
- 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, which takes into account, for example, the size of the employer.
While the above factors provide some guidance for an employer, the reality is that establishing an “undue hardship” is a very difficult burden for an employer to meet. The employer must show more than mere inconvenience or disruption to the workforce.
However, the EEOC did clarify that an employee’s request for indefinite leave – meaning that an employee cannot say whether or when he or she will be able to return to work at all – is not a reasonable accommodation. While an employee (or the employee’s doctor) rarely provides such a conclusion at the beginning of the leave, often times the leave is repeatedly extended month after month. In those instances, employers are left wondering whether such leave has converted into an indefinite leave.
Q: Are Employers Permitted to Have Maximum Leave Policies?
A. Yes. But, be very careful how you use them. In the case of a disabled employee, the EEOC states that employers may have to modify such policies to grant leave beyond the allotted amount as a reasonable accommodation, absent showing an undue hardship. Therefore, while employers may maintain maximum limit leave policies, those policies cannot be strictly applied when dealing with employees with disabilities.
What Employers Should Do?
While the EEOC guidance does not establish new law or policy, it nevertheless provides a good starting point for employers assessing whether a leave of absence may be a required accommodation for a particular employee. Issues involving leaves of absence are very complicated and must be evaluated on a case-by-case basis. One or two different facts can greatly alter the outcome. Employers should review any applicable policies, procedures, and practices in light of the EEOC’s guidance to ensure they are consistent with the above and that the management team members are fully conversant in these requirements. If you have any questions about this article, please contact any member of the Firm. We can be reached at (818) 508-3700, or online at www.brgslaw.com.
Richard S. Rosenberg
Katherine A. Hren
Jessica A. Gomez
Ballard Rosenberg Golper & Savitt, LLP