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When Employer Leave Policies Lead to ADA Violations

By September 19, 2018January 10th, 2019Human Resources

by Dominick Carnicella

In the past two years, the Equal Employment Opportunity Commission (EEOC) received the highest amount of disability discrimination claims in its history. Understanding the basic requirements of the Americans with Disabilities Act (ADA) could have saved many of those errant employers thousands of dollars and untold man hours.

Most employers know that the ADA prohibits discrimination in employment on the basis of disability and that it requires covered employers (those with 15 or more employees) to provide reasonable accommodation to applicants and employees with disabilities. But many are unsure of how that applies to time off work in the event of an injury or illness. EEOC guidance says that time off work can be a reasonable accommodation for an employee with a medical condition that qualifies as a disability under the ADA.

What is reasonable?

A reasonable accommodation is defined by the law as a modification or adjustment to a job application process or the work environment that “enables an individual with a disability who is qualified to perform the essential functions of that position”. This can include changes in the work environment, job restructuring, modifications to work policies, and/or time off for individuals when needed for a disability.

Employer-Provided Leave and the Americans with Disabilities Act is guidance published by the EEOC in May 2016. It states that “some employers may not know that they may have to modify policies that limit the amount of leave employees can take when an employee needs additional leave as a reasonable accommodation.” In speaking with clients, the reaction is often shock, disbelief and occasional anger that an employer may be required to provide time off as a reasonable accommodation. Listed below are occasions when time off may be requested as an accommodation:

  • If an employer is not a covered employer under the Family and Medical Leave Act (FMLA)
  • If the employee is not eligible for FMLA
  • If the reason for leave is not covered by FMLA, but does qualify as a disability under the ADA
  • If the employee has exhausted their FMLA leave entitlement

If an employee is not able to perform the essential functions of the job, and a medical leave is needed, you must determine what kind of leave may be required by law, including FMLA for covered employers. If no other leave is required, you must begin the interactive process with the employee. This will allow you to obtain the information needed to determine if providing a leave of absence would be a reasonable accommodation without causing an undue hardship for the company.

The interactive process

For privacy purposes and consistency, this process should be handled by the individual who regularly handles your human resource functions. In order to verify and gather further information on this matter, the employer should provide a return-to-work form or a simple letter for the employee’s healthcare provider, along with the employee’s job description. The form/letter should ask if the employee’s medical condition qualifies as a disability under the ADA, what accommodations could be provided so the employee can perform the essential functions of their position, and how long the condition is expected to last. The healthcare provider should fill out the form or provide a letter certifying the employee’s need for leave, including the estimated time needed and/or any accommodations that will be needed. That information must be returned to the employer.

Employers are required to examine requests on a case-by-case basis to determine if leave would be a reasonable accommodation or an undue hardship. Proving that a request for time off is an undue hardship is difficult for employers, especially if the employer has been able to cover the position while the employee was out on an FMLA leave. In order to do so, you must show that you’ve exhausted all options including temporarily filling the position or assigning duties to other staff. If you deny a request because you have determined it to be an undue hardship, you will need to document the business reasons and the impact on the company. Of course, if the decision is cost-based, you should be prepared to provide financial information as to the cost of this accommodation and why it would be too much for the company to bear.

A few important reminders:

  • Existing policies and procedures cannot get your company “off the hook” when it comes to complying with an ADA accommodation. For example, if your policy allows for 3 weeks of additional leave once FMLA has been exhausted and the employee requests an additional 6 weeks, you must consider this accommodation request. EEOC guidance indicates that employers are required to go over and beyond their policies when it’s reasonable to do so. Enforcing blanket policies will likely be found to have violated the employees’ rights under the ADA.
  • Indefinite leaves of absence are not considered reasonable. There must be an anticipated timeframe that the employee will be able to return to performing the essentials functions of the position. An example of an indefinite leave is if the employee’s physician states they are unsure if the employee will ever be able to return to performing the essential functions of the position with or without accommodation.
  • Accommodation requests could include a request for time off of work or a reduced or modified work schedule. You may want to consider creating a temporary position with modified functions for the employee to work temporarily until they can return to their original position. However, the ADA does not require an employer to create a new position.

If you are an employer with questions about these issues, or any other HR concerns, please send an email to If you have any questions about East Coast Risk Management and the services we offer, please visit our website ( or call (724) 864-8745.

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