By Emma Luevano and Justine Lazarus
EEOC Guidance on Employer-Provided Leave and the Americans with Disabilities Act
Concerned about the number of complaints filed against employers for failing to provide reasonable accommodations under the Americans with Disabilities Act (“ADA”), the Equal Employment Opportunity Commission (“EEOC”) recently issued a reminder to employers about their obligations. While clarifying that the additional guidance does not create any new obligations, the EEOC reminded employers about the following:
*It is not sufficient to grant employees the maximum amount of leave under the Family and Medical Leave Act (“FMLA”) and/or state equivalent (such as California’s Family Rights Act (“CFRA”)) to meet obligations under the ADA. Instead, under the ADA, employers must also consider granting additional leave as a form of reasonable accommodation (beyond that required by the FMLA or CFRA), unless doing so will create an undue hardship for the employer. As the EEOC indicated, “the Commission takes the position that compliance with the FMLA does not necessarily meet an employer’s obligation under the ADA, and the fact that any additional leave exceeds what is permitted under the FMLA, by itself, is not sufficient to show an undue hardship.” As you already may know, the “undue hardship” standard is not easy for employers to meet.
* To the extent employers use form letters to instruct employees to return to work after they exhaust FMLA/CFRA leave, such form letters should explain that additional leave may be requested as a form of reasonable accommodation.
* To the extent employers use a third party to administer FMLA leaves, that contractor should communicate often with the employer’s Human Resources department to avoid mishandling accommodation requests. [Indeed, it is not uncommon to see miscommunication or lack of communication between the leave administrator and Human Resources in disability discrimination litigation.]
* An employer should not have blanket policies requiring employees to be “100% healed” or able to work without restrictions before they return to work. Under the ADA, an employee is qualified if s/he can perform the essential functions of the job with or without reasonable accommodation.
* According to the EEOC, “an employer will violate the ADA if it claims an employee with medical restrictions poses a safety risk but it cannot show that the individual is a ‘direct threat.’” In other words, the employer must show that an employee’s disability poses a “significant risk of substantial harm” to self or others. If the employee poses a “direct threat,” the employer must then consider whether a reasonable accommodation may eliminate or diminish that threat.
The EEOC also clarified that, at least under the ADA, certain employer practices are allowed. For example, employers may have policies requiring all employees to provide a doctor’s note or other documentation to support the need for a leave of absence. Employers also may enforce policies relating to unplanned absences, as long as the policies are modified, as needed, to reasonably accommodate employees who have disability-related absences. Lastly, under the ADA (but not necessarily under California or other state laws), indefinite leaves of absence do not have to be provided as a reasonable accommodation. The EEOC’s guidance is available here.
