From the desk of Tracie DeFreitas, M.S., CLMS, Lead Consultant — ADA Specialist
Employers have generally accepted the idea that, while the Americans with Disabilities Act (ADA) is not a leave law, leave is a form of accommodation that may need to be considered for qualified employees with disabilities, when reasonable. The Equal Employment Opportunity Commission (EEOC) makes clear in its publication, Employer-Provided Leave and the ADA, that employees with disabilities can be entitled to leave as an accommodation, whether it be intermittent, short-term, or extended, when granting leave will not create an undue hardship for the business. Leave can be a complex ADA accommodation to implement because the ADA does not outline leave eligibility requirements or a specified frequency or duration of leave that must be granted – which leaves many accommodation coordinators and leave management specialists struggling to determine what is reasonable.
JAN is frequently contacted by employers who understand that leave is an accommodation but who are faced with situations involving employees who have already taken several months of leave under the Family and Medical Leave Act (FMLA), a similar state or local leave law, or an employer’s leave policy, and still cannot return to work. The EEOC takes the position that employers may need to consider extending leave beyond the maximum leave allowed by leave laws and/or employer leave policies as an accommodation under the ADA when additional leave is needed due to a disability-related reason and undue hardship will not result. The question employers usually ask is not whether leave is required under the ADA, but rather, when does granting leave, particularly long-term leave, become an undue hardship?
Unlike leave entitlements under the FMLA or state/local leave laws, there is no pre-determined frequency or duration of leave time that is required to be granted as an accommodation under the ADA, nor is there a specific duration of leave that has been identified by the EEOC, or the courts, as likely to result in an undue hardship. The absence of a required duration of leave and undefined undue hardship limitation creates a challenge for employers who must decide what duration of leave is reasonable as an ADA accommodation. The frequency and duration of leave to be granted as a reasonable accommodation is left up to employer discretion and must be decided on a case-by-case basis, like other forms of accommodation. This case-by-case analysis under the ADA effectively requires employers to individually analyze each request for leave as an accommodation to identify the fact-specific impact of the accommodation on the employer’s business operations, and to determine if the employee remains qualified.
Analyzing Leave Requests and Assessing Undue Hardship
JAN consultants cannot tell employers when undue hardship is evident, but information gathered during the interactive process can be used to analyze whether leave is reasonable or an undue hardship. The following practical tips may be useful for analyzing the reasonableness of the accommodation of leave.
- Analyze all accommodation requests for leave individually.
- Know the leave laws that apply in the jurisdiction in which the business operates.
- Gather specifics about the need for leave as an ADA accommodation; frequency of the need for leave (e.g., intermittent as-needed, predictable absences, continuous leave), expected duration (e.g., one day a month for three months, eight weeks, six months), and anticipated date of return to work.
- Objectively, accurately, and confidentially document the impact the employee’s absence will have/has had on business operations (e.g., increased overtime for other workers, customer orders unfulfilled, tasks not completed in a timely manner, etc.). The objective is to capture factual information to objectively analyze undue hardship, not to use the information to penalize the employee for using leave.
Find additional information about analyzing requests for extended leave in a previously published JAN article, Long-Term Leave and the ADA after Severson.
The EEOC does not expressly define when undue hardship will result with respect to leave as an accommodation under the ADA. However, the agency does offer factors to consider when assessing leave and undue hardship in its publications on Employer-Provided Leave and the ADA and Applying Performance and Conduct Standards to Employees with Disabilities. Factors like the following may be useful to consider:
- the amount and/or duration of leave required;
- the frequency of the need for 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;
- the impact on the employer's operations and ability to serve customers/clients appropriately and in a timely manner;
- whether leave has already been taken pursuant to another leave law or program;
- whether there is evidence that the employee will be able to return to work;
- whether the request for leave is for a definite duration;
- whether the employee’s position can be held for the duration of leave; or
- when the employee’s original position cannot be held, whether the employee can be reassigned to a vacant position to continue the leave for a specified period of time and then return to the new position.
JAN receives daily questions about leave and the ADA. Even with EEOC guidance, this remains a complex reasonable accommodation issue. If you have questions about this topic, please contact JAN to speak with a consultant.