Earlier this week, the EEOC issued new guidance addressing what it described as common issues it continues to see in discrimination charges filed under the Americans with Disabilities Act. This new guidance provides nothing new that has not already been included in its Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, but does highlight, among other issues, the EEOC’s view that the ADA requires employers to:
- Modify policies that limit the amount of leave employees can take when an employee needs additional leave as a reasonable accommodation
- Not require employees returning from leave to be 100 percent healed or have no restrictions unless the employer can show that otherwise permitting the return to work would cause undue hardship or pose a “‘significant risk of substantial harm’ to self or to others.”
- Consider reassignment as an option for employees with disabilities who cannot return to their jobs following leave.
The EEOC’s guidance also sets forth considerations for whether granting a leave or additional leave of absence creates an undue hardship for the employer. Such considerations include:
- The amount and/or length of leave required (for example, four months, three days per week, six days per month, four to six days of intermittent leave for one month, four to six days of intermittent leave each month for six months, leave required indefinitely, or leave without a specified or estimated end date).
- The frequency of the leave (for example, three days per week, three days per month or every Thursday).
- Whether there is any flexibility with respect to the days on which leave is taken (for example, whether treatment normally provided on a Monday could be provided on some other day during the week).
- Whether the need for intermittent leave on specific dates is predictable or unpredictable (for example, the specific day that an employee needs leave because of a seizure is unpredictable or intermittent leave to obtain chemotherapy is predictable).
- The impact of the employee’s absence on coworkers and whether specific job duties are being performed in an appropriate and timely manner (for example, only one coworker has the skills of the employee on leave and the job duties involved must be performed under a contract with a specific completion date, making it impossible for the employer to provide the amount of leave requested without over-burdening the coworker, failing to fulfill the contract or incurring significant overtime costs).
- The impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account the size of the employer.
While providing nothing new for employers, the EEOC’s guidance is a good refresher in a single document for employers about what they need to consider when employees seek leaves of absences as reasonable accommodation for disabilities. The Guidance also reiterates that a request for indefinite leave as a reasonable accommodation causes an undue hardship and need not be granted.