Employer-Provided Leave and the Americans with Disabilities Act - PDF document

9/6/2016 Employer-Provided Leave and the Americans with Disabilities Act DBTAC, Baltimore, MD, 9/15/16 Overview • EEOC continues to receive charges indicating some employers may be unaware of Commission positions about leave and the ADA, such as: • Reasonable accommodation for individual with a disability can include: • making modifications to existing leave policies • providing leave when needed for disability, even where employer does not offer leave to other employees • ADA can require as an accommodation modifying policies that limit the amount of leave employees can take • Employer policies requiring 100% healed or “no restrictions” may deny reasonable accommodations that would enable return to work • Employers need to consider reassignment as an option for employees with disabilities who cannot return to their jobs following leave. Equal Access to Leave Under an Employer's Leave Policy • Employees with disabilities must be provided with access to leave on same basis as all other similarly-situated employees. • If employer offers paid or unpaid leave as employee benefit (e.g., certain number of paid leave days for employees to use as they wish, or designated as annual leave, sick leave, or “personal days”), employer must treat employee requesting disability-related leave the same as those requesting leave for other reasons. • Treat request for disability-related leave that falls within employer's leave policy the same as an employee who requests leave for reasons unrelated to disability. 1

9/6/2016 Example • Employer provides 4 days of paid sick leave each year to all employees • Employee requests to use 3 days for flare up of depression symptoms due to several particularly stressful months at work • S upervisor requires psychiatrist note because “otherwise everybody who's having a little stress at work is going to tell me they are depressed and want time off .” • Because employer's sick leave policy does not require any documentation, and requests for sick leave are routinely granted based on an employee's statement that he or she needs leave, supervisor's action violates the ADA. • Employee cannot be subjected to different conditions for use of sick leave than employees without her disability. Example • Employer permits employees to use paid annual leave for any purpose without explanation. • Employee with a disability requests one day of annual leave and mentions to supervisor she’s using it to get repairs on her wheelchair. • Even though supervisor never denied other employees annual leave based on reason for using it, he responds, “That's what sick leave is for ,” and requires her to designate the time off as sick leave. • Employer has violated ADA by denying employee use of annual leave due to her disability. Example • An employee with a disability asks to take six days of paid sick leave. The employer has a policy requiring a doctor's note for any sick leave over three days that explains why leave is needed. • The employee must provide the requested documentation. • Employers are entitled to have policies that require all employees to provide a doctor's note or other documentation to substantiate the need for leave. 2

9/6/2016 Granting Leave as a Reasonable Accommodation • When requests for disability-related leave fall under existing employer policies, employer's obligation is to provide persons with disabilities access to those policies on equal terms as similarly situated individuals, but that is not the end of employer's obligation under the ADA • Reasonable accommodation requires employers to change the way things are customarily done to enable employees with disabilities to work • Leave as a reasonable accommodation is consistent with this purpose when it enables an employee to return to work following the period of leave Reasonable Accommodation • Reasonable accommodation does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy. • An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee needs it, and so long as it does not create an undue hardship for the employer. This reasonable accommodation requirement applies even if: • 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). Example • During first 3 years of employment, employer provides 10 days paid annual leave and 4 days paid sick leave each year, thereafter increasing allotment. • Employee has worked only two years; has used his 10 days of paid annual leave and now requests 6 days of paid sick leave for disability-related treatment. • Under its leave program, employer must provide employee the 4 remaining days of paid sick leave he is entitled to under policy, but may refuse to provide paid leave for the 2 additional days of sick leave, because employee has not worked long enough to earn this benefit. • However, employer must provide 2 additional days of unpaid sick leave as a reasonable accommodation unless it can show that providing the 2 additional days would cause undue hardship. 3

9/6/2016 Example • Employer's leave policy does not cover employees until they have worked for 6 months. • Employee has worked for only 3 months; needs 4 weeks of leave for treatment for a disability. • Although employee ineligible for leave under the employer's leave policy, employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship. Example • Employer's leave policy explicitly prohibits leave during the first six months of employment. • New employee needs leave for treatment of a disability and employer tells him that if he takes leave, he will be fired. • Although employee ineligible for leave under employer's leave program, employer must provide unpaid leave as a reasonable accommodation unless it can show undue hardship. • If the employer could provide unpaid leave without undue hardship, terminating the individual instead violates the ADA. Example • Employer's leave policy does not cover employees who work fewer than 30 hours per week. • Employee who has not worked enough hours to be eligible for FMLA leave requests one day of leave each week for the next three months for treatment of disability. • Employer must provide unpaid leave as reasonable accommodation unless it can show undue hardship. 4

9/6/2016 No Penalties • Employer may not penalize employee for using leave as a reasonable accommodation. Doing so would be a violation of the ADA because it would render the leave an ineffective accommodation; it also may constitute retaliation for use of a reasonable accommodation . • An employee who is not covered by the FMLA requires 3 months of leave due to a disability. Employer determines that it would not cause undue hardship and grants the request. Instead of giving the employee an unsatisfactory rating during her next annual performance appraisal because she failed to meet production quotas while she was on leave, the employee's supervisor should evaluate the employee's performance taking into account her productivity for the months she did work. Leave and the Interactive Process Generally: Communication after an Employee Requests Leave • When employee requests leave, or additional leave, for a medical condition, employer must treat it as ADA accommodation request • However, if leave request can be addressed by employer’s leave program, the FMLA (or a similar state or local law), or the workers' compensation program, employer may provide leave under those programs. • If leave cannot be granted under any other program, then employer should promptly engage in “interactive process” with employee -- a process designed to enable employer to obtain relevant information to determine feasibility of providing leave as accommodation without causing undue hardship. Interactive Process • information required by employer will vary; sometimes disability may be obvious; in other situations, employer may need additional information to confirm that condition is a disability under the ADA. • however, most of the focus will be on the following issues: • the specific reason(s) the employee needs leave (for example, surgery and recuperation, adjustment to new medication regimen, training of new service animal, or doctor visits or physical therapy); • whether leave will be a block of time (for example, three weeks or four months), or intermittent (for example, one day per week, six days per month, occasional days throughout the year); and • when the need for leave will end. • Depending on the information the employee provides, the employer should consider whether the leave would cause an undue hardship 5