How long does the Americans with Disabilities Act (ADA) require an employer to continue employing a disabled employee who is on leave? This question comes up frequently when employees remain on medically necessary leave beyond the period provided under FMLA or similar state or local laws. On May 9, 2016, the Equal Employment Opportunity Commission (EEOC) published the Employer-Provided Leave and the Americans with Disabilities Act to help explain these rules to employers.

Since the amount of leave time required under the ADA will always vary depending on the specific facts and circumstances for each disabled employee, this new resource document cannot answer the question with a precise time limit. Instead, the document walks through what constitutes a reasonable accommodation under the ADA, how the accommodation requirement relates to an employer’s leave and return policies, and what creates an undue hardship permitting an employer to deny the leave request.

Disabled employees must be allowed to take leave on at least equal terms as similarly-situated employees. A request for additional paid leave beyond the employer’s paid leave policy is generally not a reasonable accommodation. However, requests for unpaid leave must be allowed as reasonable accommodation, unless the additional time would be an undue hardship for the employer. When an employee requests leave, the document suggests that the employer “promptly engage in an ‘interactive process’ with the employee” to determine the employer’s ability to provide the leave without undue hardship. When an employer’s leave policy has maximum leave limits, an exception to extend leave beyond the maximum does not automatically create an undue hardship for the employer.

Throughout the document, the EEOC provides examples of leave requests in specific employment situations. Since the document’s focus is on leave, the examples all assume that leave is the only option; that no other job modification would meet the employee’s needs. However, if the employer engages in an interactive process with the employee, alternate accommodations that also meet the employee’s needs may become apparent, such as working from home, part-time work, modified job duties, adaptive devices, etc. In some cases, it may be appropriate to combine other accommodations with leave to assist the employee in returning to work sooner and possibly create less hardship for the employer. Even when leave is the only initial option, alternate accommodations may emerge later if the employer periodically checks in with the employee to ask how they are doing and whether the employer can do anything to help them recover and return to work.

In addition to leave as a reasonable accommodation, the document discusses some issues that often impact employee requests to return to work from leave. For instance, an employer may require a health care provider’s release before allowing the employee to return to work. However, employers may not require a release be without restrictions if the employee is able to safely perform the job with modifications (to the work environment, job duties, schedule, etc.) that would not create an undue hardship on the employer. Determining what job modifications are reasonable accommodations often requires the employer to engage in an interactive process with the employee to determine what options will meet the employee’s needs. If modifications would not enable the employee to return to work in his or her current position without undue hardship on the employer, reassignment to a new (vacant) position might be necessary as a reasonable accommodation.

Employers often struggle with what would constitute an undue hardship. The basic rule, which has not changed, is that an accommodation is only an undue hardship if it would impose significant difficulty or expense on the employer given the facts and circumstances of the request. There is still no bright line rule for how long is too long and each leave request must be considered on a case-by-case basis. However, this new resource document states that requests for indefinite leave that an employee might never return from would constitute an undue hardship. In addition, employers may consider:

  • the overall length of leave requested;
  • the frequency of intermittent leave;
  • whether there is any timing flexibility;
  • whether intermittent leave dates are predictable or unpredictable;
  • the impact on coworkers and performance of specific job duties; and
  • the impact on the employer’s operations and its ability to serve customers/clients.

According to the Press Release, this new resource document is part of a series of EEOC Resource Documents explaining the application of existing policy and guidance. This document and other resource documents, fact sheets, official guidance, regulations, etc. on a variety of EEOC topics can be found on the EEOC Publications page where future resources documents will also be published.

For employers who would like more information on this specific topic, the resource document includes links to related EEOC guidance in the Additional Information section at the end. As always, please feel free to contact your Keller account team or your legal advisor if you have questions or concerns.