EEOC Finally Tries To Clear Up The Issue Of When Medical Leave Is A Reasonable Accommodation Under The Americans With Disabilities Act

By harley erbe

A source of significant confusion in the employment law field has been the interplay between the Family and Medical Leave Act and the Americans With Disabilities Act.  The issue is what happens when an employee exhausts available FMLA medical leave but still needs more time off.  Does the ADA require employers to allow additional medical leave as a form of reasonable accommodation? 

The Equal Employment Opportunity Commission chimed in on those questions in its May 9, 2016 publication entitled Employer-Provided Leave and the Americans with Disabilities Act.  It noted that a reasonable accommodation is, generally, any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.  Reasonable accommodations can include making modifications to existing leave policies and providing leave when needed for a disability, even when an employer does not offer leave to other employees.  The resource document is meant to explain to employers and employees in a clear and practical way how to approach requests for leave as a reasonable accommodation so that employees can manage their health and employers can meet their business needs.”  Just like any other accommodation, the purpose of leave as an accommodation is to give employees with disabilities equal employment opportunities.

The  EEOC observed that the point of the ADA's reasonable accommodation mandate is to compel employers to alter their policies to enable employees with disabilities to work.  Leave as a reasonable accommodation furthers that goal when it enables an employee to return to work after a period of leave.  That's true even if the employer doesn't have a general policy allowing for medical leave and the employee's exhausted all available medical leave under the under the FMLA.  An employer's reasonable accommodation obligations under the ADA may require it to provide a disabled employee with special medical leave as a reasonable accommodation if the employee requires it, as long the employee's medical leave does not create an undue hardship for the employer.

So how's this supposed to work?  The EEOC recognizes that it's incumbent upon employees to notify employers about the need for medical leave related to a disability.  When an employee requests leave for a medical condition, the employer must consider the request as one for a reasonable accommodation under the ADA.  But if the leave request can be honored by an employer's leave policy, the FMLA or a state or local law mandating medical leave, or through workers' compensation, the employer may provide leave through those laws or programs rather than as an ADA reasonable accommodation.  If medical leave is not available through any other method, then an employer should immediately begin the "interactive process" with the employee, which I discussed in an earlier post.

The interaction between the employer and the employee may need to continue after the employee begins medical leave as a reasonable accommodation.  Perhaps the employee doesn't have a set return to work date or needs to extend any planned medical leave.  Both situations may necessitate further employer/employee interaction.  An employer that has granted medical leave with a fixed return date is not allowed to request that the employee provide periodic updates, although the employer may contact the employee to receive an update on the employee's progress.

The EEOC's resource document also discussed the ADA's impact when employee's are returning to work from a medical leave that was granted as an ADA accommodation.  I'll discuss that in a later post.

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