The Equal Employment Opportunity Commission (“EEOC”) recently published on its website what it calls a “resource document,” called “Employer-Provided Leave and the Americans with Disabilities Act.” The EEOC’s stated purpose is to address an increased volume of charges alleging violations of the Americans with Disabilities Act (“ADA”). The agency says that its document is consistent with existing regulations and enforcement guidance. Below is a summary of the key points.

Employers Must Apply Leave Policies Consistently

Employers must offer short-term leave, such as PTO or sick leave, on the same basis to employees who need such leave for ordinary illness or in connection with disabilities. For example, California employers must provide paid sick leave. Employers also may allow short-term periods of time off for illness without the need for documentation. If these leaves are offered to an employee with the flu (not a “disability”) without a note, then they must be offered to an employee as an accommodation for a disability without the need for documentation as well.

Employers still may impose rules regarding documentation that apply across-the-board. An employer’s policy might require medical documentation for leaves of more than three days, for example. As long as the employer applies this rule to all types of leave, it should be lawful. When employees require longer-term leave, such as time off in excess of leave authorized under federal and state medical leave law, the employer of course may require additional documentation.

Employees May Use Paid Time Off for Disability-Related Absences

Sometimes employers require employees to exhaust their sick leave with qualifying absences before using paid vacation for medical leaves. The EEOC explains such policies run afoul of the ADA if the absences are disability-related. That is because if an employer provides paid time off under a policy that does not limit its purpose, the employer should not be able to limit the employee with a disability to a non-disability purpose. California and other states’ employers may prefer employees to use vacation leave anyway, because the unused balance must be paid out at the time of termination. The best practice will be to let the employee choose.

Employers Cannot Count Taking Medical Leave as Poor Performance

Many employers periodically complete personnel evaluations of their employees. If employers measure performance based on productivity, it would be considered an ineffective accommodation to grant leave, but then consider the time off against the employee’s performance or productivity levels. The EEOC suggests employers modify evaluations so that the employees’ evaluations consider only the time period the employee was working.

Maximum Leaves

The EEOC’s guidance document briefly addresses the always difficult issue of how much leave is enough. The agency notes many employers mistakenly deny leave in excess of federal or state leave laws, such as the 12 weeks allowed under the Family and Medical Leave Act. Other employers deny leave as accommodation to employees ineligible for FMLA leave or part-timers, for example.

The EEOC emphasizes that the ADA’s requirements are separate. Employers must grant or extend a leave if (1) it will result in a reasonable accommodation, and (2) will not cause an undue burden. Regarding the first point, the employee must be able to provide the employer an approximate date of when he or she will be able to return to work for the extension to be considered a reasonable accommodation. And the employee should be able to work with or without further accommodation at its conclusion.

Regarding undue burden, the agency recognizes that the length of the entire leave, not just the additional period the employee is seeking will affect the analysis. Multiple extensions can be viewed in the aggregate. Additionally, the EEOC acknowledges that requests for indefinite extensions are not reasonable. In addition, the employer may consider a variety of other factors addressed in regulations and case law.

Employers Cannot Require a 100% Healed Worker

The EEOC notes employers erroneously require employees to remain on a medical leave until they are fully healed. Employers must consider work accommodations that will enable employees to return to work, especially when considering discharge of an employee seeking extended leave. When the employee cannot perform the essential functions of his or her own position with an accommodation, the employer then must consider reassignment or even transfer to an open, available job for which the employee is qualified, even at another location. Undue hardship of course is always a defense, as well as the more narrow defense of “direct threat” to safety and health.

Employer’s Cannot Nag

Employers may check in on an employee’s recovery and wellbeing from time to time, as human beings may do without violating the ADA. But employers may not require employees to periodically advise employers about their status during an approved leave. It is lawful for the employer to contact the employee shortly before the expiration of an approved leave to arrange for the employee’s return and assess needed accommodations, if any.

Interactive Process

Finally, the interactive process – communication between the employer and employee about the need for accommodation – is essential for employers in this area. Employers must not take for granted the obligation to communicate particularly before discharging an employee on extended leave. It is nearly impossible to apply blanket rules in this area. An interactive process ensures management approaches each leave situation on a case-by-case basis.

The interactive process may identify alternatives to leave or a transfer or reassignment that might avoid discharge, and a possible administrative complaint or lawsuit.

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