There seems to be a lot of confusion these days about Employer-Provided Leave and the ADA. For instance, did you know that under the EEOC’s guidance, employers are required to provide disability accommodation leave, job protections and reinstatement rights even for disabled employees who have exhausted all FMLA and other required or permitted medical leaves? I think the confusion stems from the fact that while this is not a law, the EEOC uses it to enforce an employer’s obligation to provide disability accommodation leave and reinstatement rights to employees with disabilities.
Some things to consider:
- Existing law provides that a leave of absence may be required as a possible reasonable accommodation even if the employee has already used up all available leave, is not entitled to leave under the employer’s policies, and even if the employer does not offer paid or unpaid leaves.
- An employer is not required to grant a request for leave as a reasonable accommodation if it would create an “undue hardship.”
- An employer does not have to provide an “indefinite leave” of absence as a reasonable accommodation, because indefinite leave will constitute an undue hardship. The EEOC defines an “indefinite” leave as when an employee cannot say whether or when she will be able to return to work.
- Under the ADA, an employee on disability accommodation leave is entitled to return to his or her original position at the end of leave, meaning the employer must keep the position open for the employee unless the employer can show undue hardship. This is so even if the employee has run out of job-protected leave under the FMLA or similar state laws.
There are many things an employer should consider relative to using Leave as a Reasonable Accommodation. One in particular, is that if your company has a policy setting a maximum amount of leave you may want to include an exception in the policy and specify that the employer may provide unpaid leave as an accommodation beyond the leave maximum on a case-by-case basis.
Springboard works with companies on these and many other important issues relative to the employment of individuals with disabilities. To learn more about Springboard’s services, please contact Ivette Lopez at firstname.lastname@example.org or 973-813-7260 x102.