Leave accommodations can be a complicated issue for a company’s human resources and legal teams.  The EEOC, however, recently issued guidance discussing leave as a reasonable accommodation under the Americans with Disabilities Act (ADA).  The guidance serves as a good reference on the EEOC’s stance on several complex accommodation issues, and clarifies the EEOC’s views on equal access to leave, granting additional unpaid leave as an accommodation, and maximum leave policies.  In light of the recent guidance, now is a good time to review your company policies.

Employers Must Provide Equal Access to Leave.

In its guidance, the EEOC reiterates that employers must provide access to leave to disabled employees on the same basis as all other similarly-situated employees.  For instance, if the employer’s policy allows five days of sick leave without documentation, the employer cannot require disabled employees to provide documentation for their use of sick leave.  The employer may not subject disabled employees to different conditions for use of sick leave.

Employers May Be Required to Provide Leave as a Reasonable Accommodation.

Employers may also be required to provide employees with unpaid leave in excess of the employer’s leave policy, as additional unpaid leave can be considered an appropriate ADA accommodation.  For example, an employee who is not covered under the FMLA and who is only permitted four days of leave under a company leave policy may be entitled to take unpaid leave beyond the typically allotted four days, provided such leave is reasonable and does not impose an undue burden on the company.  This same reasoning also applies to employees who are not entitled to any leave.  In these situations, employers should engage in the interactive process to determine whether such leave would be a reasonable accommodation.

Maximum Leave Policies Must Be Reviewed.

The ADA requires that employers make exceptions to their policies to provide reasonable accommodations, including exceptions to leave policies that may establish a maximum amount of leave. When an employee is out of work on leave, the employer and employee should communicate regarding whether the employee is able to return to work at the end of the leave period.  If the employee requests additional leave that will exceed the employer’s maximum leave policy, the employer should engage in an interactive process with the employee to determine if additional leave would be a reasonable accommodation.

Employers should also keep reasonable accommodations in mind when sending out any form letters to employees on leave.  Employers often send letters to employees to notify them that their leave is almost exhausted, and that they need to either return to work or they will be terminated.  In light of the EEOC’s guidance, employers should consider modifying their letters to let employees know that if the individual requires additional leave as an accommodation, the employee should notify the employer as soon as possible. If an employee is granted leave without a set return date, or leave is later extended, employers are permitted to request information about why additional leave is needed.

What Steps Should Employers Take?

In light of the EEOC’s recent guidance, employers should review how leave requests are handled and ensure that the interactive process takes place.  Additionally, communications with employees nearing the end of their leave should inform employees that extensions will be considered as an accommodation, rather than requiring employees to return by a specified date regardless of circumstances.  Even when an employee may not otherwise be entitled to leave, unpaid leave should be considered as a potential reasonable accommodation.