EEOC Issues Guidance on Leave as Accommodation Under ADA

On May 9, the EEOC issued a resource document with extensive guidance on leave as an accommodation under the Americans with Disabilities Act. It can be found here. The document clarifies that leave can be a reasonable accommodation for employees, including those who work for employers not covered by the Family and Medical Leave Act. Additionally, holding an employee’s job while on leave and reinstating the employee upon return can be a reasonable accommodation.

The guidance states, “Employees with disabilities must be provided with access to leave on the same basis as all other similarly situated employees.” An employee requesting leave under an employer’s policies for a disability-related reason is subject to the same terms and conditions as an employee taking leave for a reason unrelated to disability. The guidance provides several helpful examples regarding the EEOC’s enforcement position in various scenarios.

Employers are not required to provide leave as an accommodation if it poses an undue hardship. As a practical matter, however, employers should be prepared to justify why the leave would be an undue hardship with specific, negative impacts the leave would have on the employer’s business.

The guidance also reiterates the EEOC’s position that 100-percent-healed policies are not acceptable. An employer may not require an employee to be completely healthy and free from restrictions before the employee is allowed to return to work after a leave. If an employee has been cleared to return to work by a health care provider, but has restrictions, the employer should work through the interactive process with the employee to determine whether it can accommodate the employee’s restrictions.

If you have questions regarding this guidance, please contact an attorney in the Employment Law Services group at MSEC.