For years, employers have grappled with whether or not they were required to grant employees unpaid leaves of absence as reasonable accommodations under the American with Disabilities Act (ADA.) Some employers simply claimed ignorance of the rules. Lack of information or confusion surrounding the statute is no longer acceptable.
In May 2016, the Equal Employment Opportunity Commission issued new guidelines “creating no new agency policy” but clarifying and providing additional guidance, such as examples of leaves and intermittent leave days. Employers are now expected to be familiar with their obligations to provide leaves under the ADA and be able to assess whether granting the leave is an undue hardship.
The new guidelines state “[a]n employer must consider providing an unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.” The key takeaways here are employers may be required to provide the leave even when:
- the employee is not eligible for leave under the employer’s policy
- the employer does not offer leaves under its policies
- the employee has exhausted other channels, including workers compensation, Family Medical Leave or other state and local laws
Employer determination of undue hardships has always been challenging. The guidelines spell out examples and clarifications for the employer to consider.
Guidance on Determination of Undue Hardships
Determination: Amount and/or length of leave required
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, etc.
Determination: Frequency of the leave
Example: Three days per week, three days per month, every Thursday, etc.
Determination: Flexibility with respect to the days on which the leave is taken
Example: Whether treatment normally provided on a Monday could be provided on another day during the week
Determination: Whether the need for intermittent leave on specific dates is predictable or unpredictable
Example: Unpredictable: Employee has a seizure
Predictable: Employee has chemotherapy
Determination: Impact of employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner
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
Determination: Impact on employer’s operations and its ability to serve customers/clients appropriately and in a timely manner
Example: Size of the employer
The EEOC guidelines also provide information on the interactive process, contacting an employee’s health care provider (with the employee’s permission of course), reassignments of position, if appropriate, communication with the employee, and dealing with an employer’s maximum leave policies.
Parker McCay has consistently counselled clients that an unpaid leave of absence is a reasonable accommodation unless the leave creates an undue hardship, which as mentioned above, is a high standard to meet.
Each case dealing with a leave under the Act will be assessed on a case by case basis since there is no one size fits all when assessing undue hardship. Therefore, employers should consult with counsel whenever an employee requests time off that could be covered under the ADA and specific to New Jersey employers, the New Jersey Law Against Discrimination.