On May 9, 2016, the Equal Employment Opportunity Commission issued a memorandum entitled “Employer-Provided Leave and the Americans with Disabilities Act”. Under the Americans with Disabilities Act (“ADA”), any employer with 15 or more employees must provide reasonable accommodations to applicants and employees with disabilities that require such accommodations due to their disabilities.
The memorandum discusses when and how leave must be granted for reasons related to an employee’s disability as a reasonable accommodation to ensure compliance with the Americans with Disabilities Act.
Some of the principles stated by the Equal Employment Opportunity Commission include the following:
• Employers must provide employees with disabilities access to leave on the same basis as other employees, for example, an employer may not require documentation for leave related to disabilities but not require documentation of other employees for the same leave. However, an employer may have policies requiring all employees to provide a doctor’s note for leave.
• Granting leave is a reasonable accommodation. If the employer does not offer leave as an employee benefit, the employee is not eligible for leave under the employer’s policy, or the employee has exhausted available leave, the employer must consider unpaid leave as a reasonable accommodation if it will not create an undue hardship on the employer. An undue hardship must be determined on a case-by-case basis. Employers are not required to provide paid leave beyond their paid leave policy.
• Employers may not penalize employees for using leave as a reasonable accommodation.
• If leave cannot be granted under a mandated or non-mandated policy, the employer must engage the interactive process to determine the feasibility of granting the leave.
• Maximum leave amounts, such as leave under the FMLA, may need to be modified or extended as a reasonable accommodation. A request for leave beyond the maximum amount is not by itself an undue hardship.
• Return to work policies that require 100% recovery violate the ADA where the employee can perform the essential functions of the job with or without reasonable accommodations.
• In some return to work situations, reassignment to a different job may be necessary as a reasonable accommodation, including placing the employee in an available vacant position for which the employee is qualified unless another employee is entitled to the position under a uniformly-applied seniority system.
• Indefinite leave, where an employee or doctor cannot say whether or when the employee may be able to return to work, will constitute an undue hardship on the employer.
For more information and examples, the memorandum can be found here.
If you have questions regarding the Americans with Disabilities Act, please contact Cassandra C. Wolfgram at Lynch Dallas, P.C. at firstname.lastname@example.org or 319-365-9101.