There has been a growing swell of litigation and negotiations between employers and employees to provide unpaid leave under the Americans with Disabilities act. In response to this increase in litigation (and focus), the EEOC issued a publication regarding the issue. The publication discusses a wide range of relevant topics including what employers and employees need to consider and some relevant examples to provide “guidance.” Below are a few highlights from the publication.
- Equal Access to Employer’s Leave Policy. An employer must not treat a request for an accommodation that falls within its leave policy any differently than it would a request that does not arise under the ADA or is related to a disability. Accordingly, an employer should not require a disabled employee to provide additional medical documentation that it would not otherwise require of other non-disabled employees.
- Leave Can Be a Reasonable Accommodation. The ADA sets forth parameters for an employee and employer to negotiate an accommodation that enables a disabled employee to perform the essential functions of a job. Unpaid leave can provide a reasonable accommodation because it enables the employee to continue working upon returning from leave. An employer should consider it as an accommodation even if the employee is not otherwise entitled to established leave policies offered by the employer. Whether it is an undue hardship (thereby allowing the employer to deny the leave) will depend on the circumstances of the particular request.
- The Interactive Process is Critical. The ADA requires both the employee and the employer to engage in the “interactive process” (a candid discussion between employee and employer about an accommodation). Once an employer is notified about the need for leave as a result of a medical condition, the employer should consider it a request for an accommodation under the ADA (this would include FMLA requests). If the leave cannot be granted under any other policy or law (e.g. worker’s compensation), then the employer should request relevant information from the employee to determine whether the request for leave is a reasonable accommodation and will not cause an undue burden.
- An Employer Can Request Medical Information. As part of the interactive process the employer may ask for relevant information to assess the medical condition, whether the leave is required, and the length of the leave. The specific information that may be requested will depend on the particular circumstances. In some circumstances, the employer may even request access to the employee’s health care provider in order to ask questions to assist the employer in understanding why the leave is required, the amount of leave required, and other alternative accommodations.
- Bright Line Maximum Leave Policies Create Potential Liability. The EEOC cautions any employer from enforcing any leave policies that create an automatic termination after a certain period of leave has been taken. Each employee’s leave under the ADA must be considered individually and the employer should evaluate whether extending the leave beyond the maximum policy is a reasonable accommodation.
If you feel that you have unfairly been denied an ADA accommodation, contact an employment law attorney. Maduff & Maduff specializes in a variety of employment related issues from overtime and wage theft, to discrimination, to disability rights, we can help fight for your employment rights.