Leave-related accommodation issues are among the most complex and challenging under the Americans with Disabilities Act (ADA). ADA leave can be administered in various ways, and in conjunction with employer leave policies and benefit programs, and federal and state leave laws. Deciphering and administering the requirements of federal and state leave laws can perplex even the most astute leave management specialist. Employers should be aware of the interplay between their own policies and state and federal leave laws when exploring leave as an accommodation under the ADA.
While the murkiness of applying leave benefits and entitlements can leave one clambering for clarity, the Equal Employment Opportunity Commission (EEOC) has made one point quite clear in the ADA-land of leave as an accommodation; when reasonable, employers can be expected to make an exception to a maximum leave policy to grant extended leave as an accommodation under the ADA. What is a maximum leave policy? This is a workplace policy that limits the amount of leave employees can take, regardless of the reason for the need for leave, culminating in termination when employees cannot return to work before the leave period ends.
Maximum leave policies often cap the number of weeks allowed at 12, consistent with the amount of time permitted under the Family and Medical Leave Act (FMLA), or can require caps that are either lower or much higher than 12 weeks (e.g., even one year or more). While these policies are permissible in general, the ADA requires employers to consider extending leave beyond the maximum leave allowed by policy when additional leave is needed due to a disability-related reason. When employers do not engage in the interactive process and make exceptions to policies (when reasonable), they are sometimes met with a discrimination claim from EEOC. Multiple employers have been forced to defend their maximum or inflexible leave policies, including Blood Bank of Hawaii, UPS, Dillard’s Dept. Stores, Interstate Distributor Co., and Sears Roebuck. One of the most notable settlements was with Lowes in 2016.
I know what you’re thinking — how does not being at work for six months enable an employee to do their job? This doesn’t make sense. The objective in providing leave as a reasonable accommodation is to allow a qualified employee with a disability the job-protected time that is needed to manage their medical impairment in order to return to the workforce, whether that be within three weeks, six months, or twelve. Sometimes, more leave is required than initially anticipated (e.g., usually due to unforeseen complications) and this can lead to a request to extend leave beyond the maximum leave period allowed by employer policy. When the need for extended leave becomes apparent, an interactive process is necessary under the ADA to determine – on a case-by-case basis – if it is possible to make an exception to the policy and extend leave.
There is no pre-determined duration of leave time that is required to be granted as an accommodation under the ADA. Nothing within the ADA or EEOC enforcement guidance dictates how much additional leave is required to be granted. However, employers must be clear in knowing they cannot simply rest on the requirements of their maximum leave policy to robotically deny leave when the ADA applies. Employers do have the discretion to decide how much leave is reasonable and should assess this by applying an undue hardship analysis.
How can undue hardship be established in leave-related situations? JAN cannot indicate when undue hardship is apparent, but we can offer a practical tip: accurately and objectively document the impact of the employee’s absence on business operations and leave emotions and feelings out of the analysis. It’s one thing to say that employee morale is low because Kenny hasn’t been to work in 12 weeks, but employee morale doesn’t factor in when assessing undue hardship. On the other hand, if Eric, Kyle, and Maria each have to repeatedly work ten hours or more of overtime each week that Kenny is absent in order to meet the production demands of the business, then this is a fact that will result in a multifaceted impact that can be taken into consideration. Document the facts, not the feelings. The objective is to adequately capture factual information to objectively analyze undue hardship, not to use the information to penalize the employee who is using leave.
Detailed information about maximum leave policies, leave as an ADA accommodation, and assessing undue hardship can be found in the EEOC publication, Employer-Provided Leave and the Americans with Disabilities Act. The EEOC has also issued a number of other documents that discuss how the ADA addresses various leave and attendance issues, including their enforcement guidance documents on Reasonable Accommodation and Undue Hardship under the ADA and Applying Performance and Conduct Standards to Employees with Disabilities.