On May 9, 2016, the Equal Employment Opportunity Commission (EEOC) published Employer-Provided Leave and the Americans with Disabilities Act on its website to clarify and reiterate that unpaid leave may need to be offered as a reasonable accommodation for a disability. The Guidance stresses that employers must not only offer unpaid to leave on the same basis of similarly situated employees who are not disabled, but they may also need to offer additional unpaid leave as a reasonable accommodation.

The Guidance does not constitute a regulation, but it represents the EEOC’s legal position on these issues. It also provides a cumulative resource on one of the more problematic aspects of the reasonable accommodation process—employee leave.

Leave as an Accommodation

The Guidance provides that where an employer receives a request for leave for a disability and the leave falls within an existing policy, the employer must treat this employee the same as an employee who requests leave for other reasons. However, this is not the end of the line. Additional leave may be required as reasonable accommodations under the Americans with Disabilities Act (ADA). The Guidance states that the purpose of the ADA’s reasonable accommodation requirement is to “require employers to change the way things are customarily done to enable employees with disabilities to work.” According to the Guidance, before denying a request for time off where the employee is not eligible for any other leave, the employer “must consider providingunpaid 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.”

Problematic Policies

The Guidance identifies two especially problematic types of leave policies when mishandled—(1) maximum leave policies (also referred to as no fault policies) and (2) 100% healed policies.

Maximum leave policies cap the leave an employee may take (e.g., 12 weeks, 3 months or 6 months). The Guidance cautions against rigorous application of such polices to individuals with disabilities who may need leave in excess of those caps. Instead, the Guidance advises employers to engage in the interactive process with disabled employees who need additional time off in excess of their maximum leave policy. In addition, the Guidance warns employers to be careful when using “form letters,” whether directly or through third party administrators, to communicate with employees who are on maximum leaves, as threatening termination prior to engaging in the interactive process may violate the ADA.

The Guidance also stresses that an employer violates the ADA when it has a “100% healed” policy requiring employees to be 100% healed and have no restrictions when returning to work, even if the employee can nonetheless do their job with or without reasonable accommodation. Moreover, an employer violates the ADA if it refuses to permit employees to return to work under the theory that their medical restrictions pose a safety risk, unless the employer can prove that allowing them to return poses a “direct threat” (a significant risk of substantial harm to self or to others that cannot be sufficiently mitigated with a reasonable accommodation).

Reassignment

The Guidance advises employers that reassignment may be a reasonable accommodation in some situations, including where the employee cannot perform the essential functions of his or her job, even with a reasonable accommodation, or where the accommodation would cause an undue hardship on the employer. The EEOC’s position is that “if reassignment is required, an employer must place the employee in a vacant position for which he is qualified, without requiring the employee to compete with other applications for open positions.” That said, the EEOC would not require employers to promote employees or to offer positions which other employees are entitled to receive per a uniformly applied seniority system.

Undue Hardship and Indefinite Leave

Fortunately for employers, the Guidance reiterated the long standing position that indefinite leave, “meaning that an employee cannot say whether or when she will be able to return to work at all,” will constitute an undue hardship. “At all,” however, is the important qualifier. The Guidance reminds that even though a doctor cannot provide a definitive date, but rather a range of dates, and even if later modified, this may not qualify as indefinite.

What should employers do now?

Employers should review their current leave and disability accommodation policies and practices, as well as any form letters (including those of third party administrators) issued to employees on leave. Disability accommodation policies should not include maximum caps, and employees should not automatically be notified of termination when leave is exhausted. Form letters issued to employees nearing the end of a leave should include a notice that they may request additional unpaid leave as a reasonable accommodation if they are unable to return to work. Nevertheless, employers should be clear that they retain discretion to consider the facts and circumstances when determining whether to grant additional leave.