Most of us think about workplace accommodations as modifications that will allow an employee with a disability to perform his job. Without the accommodation, doing the job may be difficult or impossible. Whether that means modifying the job duties, changing the schedule, or providing an assistive device, the ultimate objective is to help the employee to work.
But, an employer’s obligation to reasonably accommodate may not be limited to modifications that will help the employee work. Sometimes, the required accommodation is to allow an employee not to work, while still keeping his job.
That is the message of a recently published EEOC guidance on an employer’s obligation to provide leave under the ADA. While this may seem counter-intuitive, the obligation to provide leave as a reasonable accommodation is not really new. But, with this recent publication EEOC appears to be sending the message that these types of claims will get priority treatment.
The following are some practical compliance and risk management tips to avoid getting in EEOC’s cross-hairs because of your leave practices and policies:
- If you don’t offer leave as a benefit (or if employees must work a certain amount of time before becoming entitled to leave), you still must consider leave as a potential accommodation to a disability.
- If an employee has exhausted available leave (such as FMLA), you may be obligated to provide additional leave as a reasonable accommodation.
- You should not allow maximum or no fault leave policies to be applied without communicating with the employee and possibly considering exceptions to the policy for someone who many need additional leave as a reasonable accommodation. Get rid of the “form” letters that are automatically sent to the employee nearing the end of the leave period. These letters typically tell the employee to return to work by a date certain or they will be terminated. This is a big red flag.
- Just as with any other proposed accommodation, the interactive process is very important. Employers should have procedures in place to both engage in the interactive process, document that it occurred, and what was the discussion.
The most important question, and the hardest to answer, is how much leave do you have to give an employee to accommodate a disability before it becomes unreasonable? While each situation must be evaluated on a case-by-case basis (of course!), the following rules are generally applicable:
- The employee must be allowed to exhaust legally mandated leave (e.g., FMLA).
- The employee should be allowed to exhaust available paid leave.
- Typically, it is not reasonable to require additional leave for a long time. Of course, what is “long time” for one employer may not be for another. If the employee has already been gone for twelve weeks on FMLA, it probably would not be an undue hardship to allow a couple more weeks. A lot depends upon what needs to be done to cover for the absent employee.
- Typically, it is not reasonable to grant additional leave for an uncertain, unknown period of time. If a physician provides a date certain the employee can return to work, and it’s not too far in the future (see above), then it probably is reasonable to accommodate.
- Precedent is important. If you allowed a similar employee an additional 30 days of leave last year, you should treat this year’s request similarly.