EEOC Leave Guidance

June, 2016



 Does an employer have to provide additional leave for an employee whose disability requires more leave than the 12 weeks of FMLA leave that she has already used?

Based upon the new guidance issued last month by the Equal Employment Opportunities Commission, (EEOC), the answer is YES, if the additional leave would not cause an undue hardship upon the employer.

Below is a summary of this new guidance.

The Americans With Disabilities Act, (ADA) covers employers with 15 or more employees.  The ADA prohibits discrimination on the basis of disability in employment and requires employers to provide reasonable accommodations to applicants and employees with disabilities that require such accommodations due to their disabilities.  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.”  That can include making modifications to existing leave policies and providing leave when needed for a disability, even where the employer does not offer leave to other employees.

Granting Leave as a Reasonable Accommodation.

The guidance states that 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. (more about that below).

This is the case even when the employer does not offer leave as a benefit, the employee is not eligible for leave under the policy or the employee has exhausted the leave the employer provides as a benefit, including leave exhausted under workers’ compensation or the FMLA or similar state or local laws.

An employer may not penalize an employee for using leave as a reasonable accommodation but reasonable accommodation does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy.

Leave and the Interactive Process

If an employee informs her employer of the need for leave as a reasonable accommodation, the employer should 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 an undue hardship.

This can include information regarding the specific reasons the employee needs the leave, even if the disability is not obvious; whether the leave will be a block of time or intermittent; the date when the need for leave will end.

Maximum Leave Policies

The ADA requires employers make exceptions to their policies, including leave policies, in order to provide a reasonable accommodation.

Return to Work and Reasonable Accommodation (Including Reassignment).

Employees on leave for a disability may request reasonable accommodation in order to return to work.  The request may be made by the employee, or it may be made in a doctor’s note releasing the employee to return to work with certain restrictions.

In some situations, the requested reasonable accommodation will be reassignment to a new job because the disability prevents the employee from performing one or more essential functions of the current job.

Undue Hardship

If the leave request as a reasonable accommodation would cause an undue hardship upon the employer, the employer does not have to grant the leave.  Under these circumstances, the following factors must be considered:

  • The amount and/or length of the leave required;
  • The frequency of the leave;
  • Whether there is any flexibility with respect to the days when 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 whether specific duties are being performed in an appropriate and timely manner; and,
  • The impact on the employer’s operations.




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