The Equal Employment Opportunity Commission (“EEOC”) has released new guidance on unpaid leave as a reasonable accommodation under the Americans with Disabilities Act (“ADA”).

The guidance, issued on May 9, 2016, makes clear that employers must not only provide employees with disabilities access to leave as an accommodation on the same basis as similarly situated employees without disabilities, but may be required to modify its policies to provide leave for a disability even where the employer does not offer leave to other employees. The guidance also addresses common issues for employers including analyzing undue hardship, requests for “indefinite” leave, maximum leave policies, and return to work issues, including so-called “100% healed” policies and reassignment.

Leave Under Employer Policies or Otherwise

The guidance states that if an employee requests leave related to a disability and the leave falls within the employer’s existing leave policy, it should treat the employee making the request the same as an employee who requests leave for reasons unrelated to a disability. For example, if an employer provides sick leave as well as annual leave that may be used for any purpose, an employer may not require an employee to designate leave as sick time simply because it is being used for a purpose related to a disability, as doing so would deny the employee use of annual leave due to his or her disability.

Further, the guidance stresses that because “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” (emphasis in original), an employer must consider unpaid leave as a possible reasonable accommodation even when:

• the employer does not offer leave as an employee benefit;

• the employee is not eligible for leave under the employer’s policy; or

• the employee has exhausted the leave the employer provides as a benefit (including leave under the FMLA or similar state or local laws or under a workers’ compensation program).

However, the guidance states that ADA does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy. Further, and as is the case with all other requests for accommodation, an employer can deny a request for leave if it can show that providing the accommodation would impose an undue hardship.

Analyzing Undue Hardship

The guidance provides a number of factors that an employer should consider to determine whether providing leave would result in an undue hardship, including:

• the amount and/or length of leave required;

• the frequency of the leave;

• whether there is any flexibility with respect to the days on which 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 on whether specific job duties are being performed in an appropriate and timely manner; and

• the impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer.

The guidance also states that “leave as a reasonable accommodation includes the right to return to the employee’s original position,” and “if an employer determines that holding open the job will cause an undue hardship, then it must consider whether there are alternatives that permit the employee to complete the leave and return to work.”

Indefinite Leave as an Accommodation

The guidance reiterates the EEOC’s longstanding position that requests for “indefinite” leave—that is, where an employee cannot say whether or when he or she will be able to return to work at all, as opposed to where a definitive or approximate date or range of dates can be provided—constitutes a per se undue hardship under the ADA and does not need to be provided as a reasonable accommodation.  However, employers are cautioned to carefully consider any state and local laws regarding reasonable accommodation that may apply before rejecting a request for an “indefinite” leave, as some laws provide greater protections for employees and may require an employer to demonstrate that extending leave “indefinitely” would pose an undue hardship in order to reject such a request.

Maximum Leave Policies

The guidance states that while employers “are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit,” the ADA requires that employers may nevertheless be required to “grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship.”

To that end, the guidance advises that employers who utilize “form letters” or standardized communications for employees who are nearing the end of a designated leave period “may wish to modify them to let employees know that if an employee needs additional unpaid leave as a reasonable accommodation for a disability, the employee should ask for it as soon as possible so that the employer may consider whether it can grant an extension without causing undue hardship.” The guidance also emphasizes that employers should ensure that any third party providers with whom the employer contracts to manage its leave policies (including short- and long-term disability leave programs) are instructed to notify the employer of any requests for leave beyond the maximum periods under the programs, and to refrain from terminating the employee until there has been an opportunity to engage in the interactive process.

Return to Work Issues

The guidance also addresses return to work issues, including “100% healed policies” and reassignment.

With regard to 100% healed policies—that is, policies requiring employees to return to work only if they can demonstrate that they have no medical restrictions—the guidance states that an employer will violate the ADA if it prohibits an employee with a disability from returning to work unless he/she has no medical restrictions if the employee can perform his or her job with or without reasonable accommodation (unless the employer can show that providing the accommodation would cause an undue hardship).

As to reassignment, the EEOC takes the position that if reassignment is required as a reasonable accommodation because the disability prevents the employee from performing one or more essential functions of the current job (even with a reasonable accommodation) or because any accommodation in the current job would result in undue hardship, an employer “must place the employee in a vacant position for which he is qualified, without requiring the employee to compete with other applicants for open positions.” However, the guidance notes that “reassignment does not include promotion, and generally an employer does not have to place someone in a vacant position as a reasonable accommodation when another employee is entitled to the position under a uniformly-applied seniority system.”