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Many human resources people are familiar with the Americans with Disabilities Act (ADA) requirement that an employer must engage in the interactive process to determine what, if any, reasonable accommodation to make.
Not everyone knows that one of those reasonable accommodations may be time off from work. As the Equal Employment Opportunity Commission (EEOC) has stated, “When reasonable, employers can be expected to make an exception to a maximum leave policy to grant extended leave as an accommodation under the ADA.”
Much of the information for this answer is drawn from an organization called the Job Accommodation Network (JAN). JAN is a nonprofit organization funded in part by the US Department of Labor to give advice and assistance to employers working on job accommodation issues related to the ADA.
Compliance with the time-off or extended-leave requirement raises questions for employers. For example, what does “when reasonable” mean? Reasonable is going to be determined on a case-by-case basis and defined through the interactive dialogue process between the employee with a disability and the employer to agree on the appropriate accommodation.
Leave-related accommodation issues are among the most complex and challenging under the ADA. Employers need to keep in mind that ADA leave can be administered in various ways, and in conjunction with employer leave policies and benefit programs, as well as federal and state leave laws. On the other hand, keep in mind that the employee may not be eligible for any specific statutory leave but still eligible for time off under the ADA.
What is a maximum leave policy? It is a workplace policy that limits the amount of leave employees may take, regardless of the reason for the need for leave, culminating in termination when employees cannot return to work before the leave period ends.
Maximum leave policies often cap the number of weeks allowed out of work at 12, consistent with the duration permitted under the Family and Medical Leave Act (FMLA) or the 20 weeks of leave under the Massachusetts Paid Family and Medical Leave act (PFMLA). In other cases, employers have established ceilings of six months or even a year. While these policies are permissible in general, the ADA requires employers to consider extending leave beyond the maximum leave allowed by company policy when additional leave is needed due to a disability-related reason.
The goal in providing leave as a reasonable accommodation is to allow a qualified employee with a disability to take job-protected time to manage his or her medical impairment and return to the workforce, whether that be within three weeks, six months, or 12.
Additional leave is sometimes required (typically due to unforeseen complications) resulting in the employee requesting to extend leave beyond the maximum leave period allowed by employer policy. When the need for extended leave becomes apparent, an interactive dialogue is necessary to determine – on a case-by-case basis – if it is possible to make an exception to the policy and extend the leave.
There is no pre-determined duration of leave time that is required to be granted as an accommodation under the ADA. Nor does the EEOC enforcement guidance dictate how much additional leave is required to be granted. However, employers must remember that they may not simply fall back on the requirements of their maximum leave policy to shut the door when it is possible that leave under the ADA may apply.
Employers may apply an undue hardship analysis to decide how much leave is reasonable. While each situation is likely to be unique and should be evaluated on its own merits, the EEOC has provided information to help employers determine when a reasonable accommodation becomes an undue hardship.
As part of its reasonable accommodation process an employer should accurately and objectively document the impact of the employee’s absence on business operations without incorporating emotions or feelings. The objective is to capture information to analyze whether it is an undue hardship, allowing the employer to make a legally justifiable decision.
Employers that fail to engage in the interactive process and do not make exceptions to leave duration policies (when reasonable and warranted) may suffer significant legal consequences. An employer may be sued for discrimination by the EEOC.
A major big-box retailer was sued by the EEOC in 2016 and ended up paying $8.6 million to settle a claim that it had violated the ADA by firing employees at the end of their company established leave program. Another national retailer signed a consent decree in 2009 for $6.2 million because its workers’ compensation return-to-work policy contained a specific leave end date and employees would be terminated if they were not able to return to work by that date.
Employers face significant challenges in understanding their responsibilities to implement legally compliant policies under the ADA. Employers first need to review their existing policy(ies) and practices to ensure they do not violate the requirements as explained above. If need be, edit your policy to remove any inappropriate language, and change your practices going forward.
It’s also helpful to centralize company responses to ADA related reasonable accommodation requests with HR to ensure consistency in compliance.
Remember that employers are not alone in navigating the ADA. There are a tremendous number of resources available from the EEOC and the Job Accommodation Network, a number which are highlighted throughout this article.
Detailed information about maximum leave policies, leave as an ADA accommodation, and assessing undue hardship may be found in the EEOC publication, Employer-Provided Leave and the Americans with Disabilities Act.
The EEOC has also issued documents that discuss how the ADA addresse leave and attendance issues, including enforcement guidance documents on Reasonable Accommodation and Undue
Hardship under the ADA, https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada and Applying Performance and Conduct Standards to Employees with Disabilities, Members of AIM members looking to discuss this topic or other human resources issues may call the Employer Hotline at 800-470-6277.
