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Really, not working might constitute a reasonable accommodation under the ADA?! Who knew?

As Published in the June Issue of the PELRAS Newsletter

Published on: Mon 8th Aug, 2016 By: Shon K Worner

So you have an employee who has exhausted their leave allotment but now they are asking for additional time off in order to accommodate their ability to return to work—must you engage in an interactive process with them to determine whether permitting the additional leave might constitute a reasonable accommodation in the absence of an undue hardship? According to the courts and a very recent guidance document issued by the U.S. Equal Employment Opportunity Commission (EEOC), the answer to this question is a resounding "yes!"

As we all know, the EEOC enforces the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability in employment and requires covered employers (including all local governments) to provide reasonable accommodations to applicants and employees who require accommodations in the workplace due to their disabilities. On May 9, 2016, the EEOC published a guidance document entitled "Employer-Provided Leave and the Americans with Disabilities Act" (hereinafter "the Guidance"). Apparently, the EEOC continues to receive responses to charges of disability discrimination which indicate that some employers remain unaware that they may need to modify policies that limit the amount of leave that an employee can take where the employee may need additional leave as a reasonable accommodation, or that they may need to accommodate an employee’s ability to return to work with restrictions even if they have a one hundred percent (100%) healed policy to return to work. The Guidance contains numerous examples of situations which an employer may confront that help explain the EEOC’s position on leave as an accommodation.
Equal Access

In the Guidance, the EEOC reiterates that employees with disabilities must be provided access to leave on the same basis as all other similarly-situated employees. What this means is that if an employee with a disability requests leave for reasons relating to his/her disability and the leave falls within the employer’s existing leave policy, then the employee should be treated the same as any other employee who requests leave for reasons unrelated to a disability. For example, if an employer provides 10 sick days per year and it does not require any medical documentation for the use of these 10 sick days, the employer may not require an employee who has a sufficient number of sick days remaining and who indicates that they need to the sick days to deal with symptoms of depression to provide a doctor’s note. On the other hand, the Guidance also clearly states that employers are entitled to have policies which require all employees to provide a doctor’s note or other documentation.  So, if the employer has a policy requiring a doctor’s note for any sick leave over three days that explains why the leave is needed, then it may require the same for an employee with a disability.

Leave as an Accommodation

The Guidance further indicates that an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, as long as it does not create an undue hardship for the employer. The EEOC is clear that this may require the employer to change the way things are normally done in order to allow employees with disabilities to work or return to work. Accordingly, the requirement to consider leave as an accommodation exists even where the employer does not offer leave as an employee benefit, even if the employee is not eligible for leave under the employer’s policies, or, even where the employee has exhausted the leave the employer provides, either as a benefit or through a workers’ compensation program or as required under the FMLA. For example, an employer may have a leave policy that does not apply to employees until they have been working for six months, but a new hire may require two weeks of leave for treatment of a disability. Unless the employer can demonstrate that the leave would cause an undue hardship, the employer must consider providing the leave as a reasonable accommodation. It is also important to note that an employer cannot penalize an employee for using leave as a reasonable accommodation, as doing so would render the leave an ineffective accommodation in violation of the ADA and it could also constitute retaliation. 

Maximum Leave Policies

If an employer has a "maximum leave" policy, such as a maximum leave period of 12 weeks or only permitting a certain number of unplanned absences from work, the Guidance indicates that while employees with disabilities are not exempt from these policies as a general rule, failure to permit additional time off beyond these thresholds as a reasonable accommodation may violate the ADA unless an employer can demonstrate that it would create an undue hardship.  For example, an employee is approved for FMLA leave for her disability and uses the full 12 weeks of leave but when she is scheduled to return to work, she informs her employer that she will need an additional four weeks of leave. Unless the employer can establish that permitting the additional four weeks would create an undue hardship (such as the operational impact on the employer from the leave already taken and/or for granting the additional leave), the employer should provide the additional leave as a reasonable accommodation. 
100% Healed Policies

The Guidance further indicates that an employer violates the ADA if it requires an employee with a disability to have no medical restrictions, or to be "100% healed," in order to return to work if the employee can demonstrate that they could perform their job with or without reasonable accommodation, unless the employer can demonstrate that providing the needed accommodation would cause an undue hardship. For example, an employee who has been out on leave for 12 weeks for surgery related to a disability is released to return to work but with a 20 pound lifting restriction. If the employer refuses to allow the employee to return to work because they were not returned to work "without restrictions," even though the employee’s essential functions do not require that the employee be able to lift 20 pounds, the employer would be in violation of the ADA.

Interactive Process

So what are employers required to do if an employee requests leave, or additional leave, or to return to work with restrictions due to a medical condition? If the leave can be granted under an existing leave program (FMLA, employer leave policies, etc.), then the employer should provide access under those programs under the same terms it applies to other employees. However, if the leave cannot be granted under an existing leave program, then the employer should treat the request as one for a reasonable accommodation and engage in the interactive process with the employee. The same holds true if an employee seeks to return to work with restrictions. The interactive process permits an exchange of information between the employer and employee, where the employer can request information relating to the specific reasons regarding the need for leave, whether the leave will be for a block of time or intermittent, and when the need for leave will end. With regard to a request to return to work with restrictions following a leave of absence, an employer may ask why the restrictions are required, how long they might be needed, and whether there may be other ways to accommodate a restriction than what is being requested. The Guidance indicates that the an employee requesting leave as an accommodation has a duty to provide information to the employer in order to permit it to evaluate the request and that an employee should work with his/her health care provider to provide the documentation requested as quickly as possible. 

Practical Tips

What is the take-away following review of the Guidance?  Be mindful of the overlap of various laws regarding employees’ rights in the workplace. (e.g. the FMLA, the ADA, and workers’ compensation law).  Any maximum leave policy should include an individualized review process where the policy would require the employer to examine, prior to separation, the specific situation of each employee on medical leave in order to determine whether any further, reasonable leave might be necessary to enable the employee to return to work.  If additional leave may be needed, engage in an interactive process with the employee, which could include obtaining medical records and perhaps an independent medical evaluation, depending on the circumstances. In advance of the end of the leave term, an employer should provide written notice to an employee on medical leave of the fact that their leave is about to expire per the terms of the policy and provide the employee with the opportunity to either request additional leave time as a reasonable accommodation where the additional leave time would enable the employee to return to work or, if the employee can return to work with restrictions, to enable the employer to determine whether accommodating the restrictions would create an undue hardship.

While there is no bright line rule for how much time must be provided if an employee can demonstrate that he/she might be entitled to additional leave time as a reasonable accommodation, the standard should be whether the additional leave, taking into account the leave already taken –whether pursuant to a workers’ compensation program, the FMLA, or other policies - creates an undue hardship for the employer.  Indefinite leave is not acceptable and does not need to be permitted.