Are you an employer confused about when you may need to provide leave to a disabled employee as a reasonable accommodation under the Americans with Disabilities Act?
You are not alone.
The U.S. Equal Employment Opportunity Commission, the federal body that enforces the ADA, has recently issued guidance meant to clarify this topic.
Here are some of the key takeaways from the EEOC’s latest report.
First, an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and as long as it does not create an undue hardship for the employer.
An employer may not penalize an employee for using leave as a reasonable accommodation. Doing so would be a violation of the ADA because it would render the leave an ineffective accommodation; it also may constitute retaliation for use of a reasonable accommodation.
Second, requiring an employee to be 100% healed or recovered before returning to work may not be allowed under the ADA if the employer has an existing position for which the employee could perform within any medical restrictions, unless temporarily placing that employee in such position would cause an undue hardship.
Be very careful about using inflexible maximum leave policies.
Fourth, understand 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—typically will be found by the EEOC as an undue hardship for businesses.
This is the case particularly where an employee has already exhausted any other leave to which he or she may have been entitled (such as sick leave provided by the employer or any unpaid leave provided under the state or federal family and medical leave acts).
Fifth, while an employer may temporarily replace an employee who is out on leave to enable the work to continue to flow, the employee must typically be restored to his or her original position upon return to work, absent undue hardship.
Finally, it is also clear that employees must engage in an interactive process with employers when seeking leave as a reasonable accommodation by providing medical information necessary to enable employers to evaluate their eligibility for such leave.
Author: Miguel Escalera is a partner at the labor and employment law firm Kainen, Escalera & McHale in Hartford.