EEOC ‘resource document’ clarifies employer-provided leave as reasonable accommodation under ADA

In light of a “troubling trend” marked by a “prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation,” the EEOC has issued a new “resource document” addressing leave as a disability accommodation under the ADA. The resource document, Employer-Provided Leave and the Americans with Disabilities Act, is aimed at helping educate employers and employees about workplace leave under the ADA to prevent discriminatory denials of leave. Announcing the new resource document, the EEOC said that disability charges reached a new high in fiscal year 2015, increasing 6 percent-plus from the previous year. Turning to the “troubling trend,” the commission said that employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation often serve as systemic barriers to employment of workers with disabilities. These policies may cause many workers to be terminated who otherwise could have returned to work after obtaining necessary leave without undue hardship to the employer. Moreover, EEOC regulations already provide that reasonable accommodations may include leave, potentially including unpaid leave that exceeds a company’s normal leave allowances. Consolidated guidance, not new policy. The resource document responds to common questions employers and employees have raised about leave requests that concern an employee’s disability. It does not create new agency policy. It consolidates existing guidance on ADA and leave into one place, addressing frequently arising issues about leave as a reasonable accommodation, including the interactive process, maxi­mum leave policies, “100 percent healed” policies, and reassignment. The new resource document in addition addresses undue hardship issues, including the amount and/or length of leave required, the frequency of leave, the predictability of intermittent leave, and the impact on the employer’s operations and its ability to serve customers and clients in a timely manner. “Providing employees with a period of leave for medical treatment or recovery can be a critical reasonable accommodation for people with disabilities,” said EEOC Chair Jenny Yang. “This resource document explains to employers and employees in a clear and practical way how to approach requests for leave as a reasonable accommodation so that employees can manage their health and employers can meet their business needs.”