EEOC Addresses Issue of Leave as ADA Accommodation

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By Patrick Dorrian

May 9 —The EEOC has provided employers with a new source of information on the use of employer-provided leave as an accommodation under the Americans with Disabilities Act.

According to a resource document issued May 9 by the Equal Employment Opportunity Commission, employers must provide workers with disabilities access to leave on the same basis as similarly situated nondisabled workers.

So when an employee requests leave for reasons related to a disability and the leave falls within the company's existing leave policy, the employer must treat the request the same as a request for leave for reasons unrelated to a disability, the EEOC says.

The document should provide clarity to employers and employees on an issue the EEOC has been preparing guidance on for a numbers of years, an effort spearheaded by Commissioners Chai Feldblum (D) and Victoria Lipnic (R) (233 DLR A-1, 12/5/11).

In June 2012, Feldblum indicated that she and Lipnic had been working steadily on proposed guidance up until March 2012, when the effort took a back seat to other items on the EEOC's agenda (123 DLR C-1, 6/26/12).

“The purpose of the ADA's reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work,” the agency says in the document. “Leave as a reasonable accommodation is consistent with this purpose when it enables an employee to return to work following the period of leave.”

The document states that the ADA's accommodation provisions don't require employers to provide paid leave beyond what they provide under a paid-leave policy and that employers may deny requests for disability-related leave when it can be shown that granting the accommodation would impose an undue hardship on its business.

‘Troubling Trend' Cited

In a statement announcing issuance of the document, the EEOC May 9 noted that 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 “troubling trend” emerging from those charges, the agency added, is “the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation.”

Such policies often serve as a systemic barrier to the hiring or continued employment of workers with disabilities, according to the EEOC.

It said the purpose of the new resource document is to educate employers and employees about workplace leave under the ADA and to prevent the denial of leave in a manner that discriminates against workers with disabilities.

Under the EEOC's existing ADA regulations, a reasonable accommodation may include leave, including unpaid leave beyond what's normally permitted under an employer's stated policy, the agency said.

“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,” according to the new resource document.

The resource document consolidates the agency's existing guidance on the ADA and leave in one place, the EEOC said.

Undue Hardship Exception

The document lists multiple factors an employer should consider in determining whether granting an employee leave as an ADA accommodation would impose an undue hardship on its business.

The factors include the amount and/or length of leave required, how frequently the leave will be used and whether the employee has any flexibility on the days the leave is taken.

While in some cases an employee may only be able to provide an approximate return-to-work date and such date may need to be modified or adjusted, a request for indefinite leave “will constitute an undue hardship,” according to the document.

The document also addresses employers' use of 100-percent-healed policies for workers trying to return to work from disability-related leave.

In addition to private sector workers covered under the ADA, the document also applies to federal employees under Section 501 of the Rehabilitation Act.

To contact the reporter on this story: Patrick Dorrian in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at