On Monday of this week, the EEOC issued what it calls a “Resource Document” related to employer-provided leave as a reasonable accommodation under the ADA. The document can be found here: https://www.eeoc.gov/eeoc/publications/ada-leave.cfm. This document confirms that the EEOC is serious about enforcing its position that unpaid leave is a form of reasonable accommodation for an employee with a disability under the ADA. It also contains some helpful guidance regarding the EEOC’s positions on this matter. The document points out that disabled employees who request leave provided under employer policies cannot be subjected to stricter requirements than are applied to non-disabled employees. For example, the EEOC’s position is that an employer that routinely allows employees to take a few days of annual leave without any explanation of how the leave will be used should not deny annual leave to a disabled employee who specifically states the leave is needed for purposes related to the disability. The document also confirms that an employer should not penalize a disabled employee for use of leave as an accommodation, such as on performance evaluations or under employer absence policies. The document further reminds employers that they must consider granting reasonable accommodations to allow a disabled employee to return to work after taking leave, such as modification of the employee’s work space or schedule, or reassignment to a vacant position, and EEOC takes the position that the employer must allow the employee to return to his or her original position after taking leave unless doing so would be an undue hardship.
Although the above guidance is somewhat helpful, what stands out the most to me is what the document does not say: how much leave an employer is required to grant a disabled employee as a reasonable accommodation. While the FMLA provides for a fairly clear cut 12 weeks of leave within a 12 month period, the EEOC does not place any such limitations on how much leave is required under the ADA. The EEOC’s document makes a point of instructing employers that additional leave beyond the 12 weeks granted under the FMLA can be a required accommodation, but does not give any clear guidance as to how much additional leave must be granted. What that says to me is, any time an employer denies an employee’s request for additional unpaid leave as an accommodation under the ADA, the employer must be able to articulate how the additional leave would create an undue hardship on the employer’s business. It is some consolation, however, that the federal Fifth Circuit Court of Appeals, which decides federal employment cases coming out of Texas, appears to take a more restrictive view than the EEOC of when and how much leave is required to be granted as a reasonable accommodation.