The Americans with Disabilities Act requires employers to provide reasonable accommodations that allow people with disabilities to perform the essential functions of their jobs, unless it would pose an undue hardship for the employer.  Reasonable accommodations may include leave, according to the Equal Employment Opportunity Commission (EEOC) and could potentially include unpaid leave that exceeds an employer’s normal leave allowances.

An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.  Such leave is an accommodation when:

  • 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 the leave the employer provides as a benefit (including leave exhausted under a workers’ compensation program, or the FMLA or similar state or local laws).

It is a violation of the ADA to penalize an employee for using leave as an accommodation.  Take, for example, an employee who is not covered by the FMLA, but requires a three-month leave of absence due to a disability.  Under those circumstances, an employer should not give the employee an unsatisfactory evaluation that considers her unproductivity during the leave period, but should instead evaluate her performance based upon the time she was not on leave.

As part of the interactive process in determining reasonable accommodations, employers may obtain information from the employee’s health care provider (with the employee’s permission) to confirm or to elaborate on information that the employee has provided.  In addition, the interactive process can continue during the leave period if the employee has not specified a return date or has asked to extend leave beyond the original request.

According to the EEOC, policies that set a maximum amount of leave for employees, may have to make exceptions to provide a reasonable accommodation.  These maximum or “no fault” leave policies may violate the ADA if the employer does not make exceptions for employees who require leave as a reasonable accommodation.  If an employee requests additional leave that will exceed an employer’s maximum leave policy (whether the leave is a block of time or intermittent), the employer may engage in an interactive process, including obtaining medical documentation specifying the amount of the additional leave needed, the reasons for the additional leave, and why the initial estimate of a return date proved inaccurate. An employer may also request relevant information to assist in determining whether the requested extension will result in an undue hardship.

An employer may also violate the ADA if it requires an employee with a disability to be released to work with no restrictions.  Such a requirement could effectively deny an employee needed accommodations.

Can a job reassignment be a reasonable accommodation?  The EEOC says, yes.  The Commission takes the position that if reassignment is required, an employer must place the employee in a vacant position for which he is qualified, without requiring the employee to compete with other applicants for open positions.  However, an employer is not required to give an employee a promotion.

For more on employee leave and the ADA, check out Employer-Provided Leave and the Americans with Disabilities Act, a comprehensive Resource Document issued by the EEOC this year. The Resource Document also 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.

Photo by Ivan T via Flickr

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