Many employers maintain policies that restrict the amount of time an employee can take off from work, or that prohibit employees who are ineligible for leave under the Family and Medical Leave Act to take time off from work at all even when ill or injured. But a new resource document issued by the EEOC reminds employers that leave can be a reasonable accommodation under the Americans with Disabilities Act (“ADA”), and that arbitrary limits on leave may be a violation of the law.

The ADA requires employers to provide reasonable accommodations that allow people with disabilities to perform the essential functions of their jobs, unless doing so would pose an undue hardship for the employer. According to the EEOC, the failure by employers to offer, or, if applicable, to extend leaves of absence may result in disabled workers being disciplined or terminated, even though additional time off may have enabled them to perform the essential functions of their jobs without posing an undue burden on the employer.  The EEOC’s guidance document does not announce new legal principles, but rather summarizes existing EEOC guidance on leave as a reasonable accommodation, such as the following:

• Employees with disabilities must be provided with access to leave on the same basis as all other similarly-situated employees, meaning, for example, that paid sick leave can be utilized by employees for reasons related to a disability just as it can be used to recover from a cold, subject to the same documentation and call-in obligations.

• Employers must consider granting unpaid leave to an employee as a reasonable accommodation if the employee requires it, so long as it does not create an undue hardship, even if the employer does not offer leave as an employee benefit or where the employee is not otherwise eligible under the leave policy or has already exhausted leave.

• Like other requests for reasonable accommodation, the individual with a disability must inform the employer that leave as a reasonable accommodation is needed. If the leave can be granted under the Family and Medical Leave Act (FMLA), a workers’ compensation program, or other leave program, the employer may do so, but, regardless of the availability of other leave programs, the employer still must engage in an interactive dialogue to determine the feasibility of the leave, weighing the employee’s need for leave and its expected duration in the undue hardship analysis.

• Employers can obtain information from the disabled employee’s health care provider to help understand the need for, amount, and type of leave requested and whether other reasonable accommodations may be effective. The interactive dialogue with the employee and communication with the health care provider may continue during leave, as necessary.

• Arbitrary caps on the duration or frequency of leave (so-called “maximum leave” policies) are impermissible; employers must conduct individualized assessments.  However, indefinite, open-ended leaves of absence continue to constitute an undue hardship.

• “100% healed” policies, which require an employee to be fully recovered before returning to work after leave, may violate the ADA. Employers should consider job modification, light duty, reassignment, or other reasonable accommodations to assist the employee in returning to work.

Employers are encouraged to review their leave and disability accommodation policies and omit language capping leave or threatening immediate termination when leave is exhausted.  In addition, employers should add language to the form letters issued by them or their third-party leave administrators to employees nearing the end of leave so that they indicate the company will consider additional leave as a reasonable accommodation, if necessary. Finally, if ADA and FMLA leaves are administered by separate personnel, they should be cross-trained to coordinate leave extensions, where applicable, and discuss any proposed automatic terminations with human resources professionals and outside legal counsel.