On May 9, 2016, the Equal Employment Opportunity Commission (EEOC) issued a new guidance document addressing the intersection of employer-provided leave of absence and the Americans with Disabilities Act (ADA). This document doesn’t create any new EEOC agency policy or propose any new law. Rather, it consolidates current guidance on the ADA, employer leave policies, reasonable accommodations, the interactive process, undue hardship, and other relevant subtopics. 
It appears the motivation behind this document stems from the overall rise in disability-related charges of discrimination filed with the EEOC, which increased over six percent from fiscal year 2014 to 2015. Moreover, recent charges received by the EEOC indicate employers may not know they should consider modification of leave policies as a reasonable accommodation of an employee’s disability.
Overview of new EEOC guidance document
While the EEOC guidance document isn’t binding law, employers should take it into consideration when making decisions related to leaves of absence. Here are some highlights from the document:
- When it comes to annual leave, whether allotted sick days or personal days, you should treat employees with disabilities the same as other similarly situated employees. For example, if you offer four paid sick leave days each year to all employees with no conditions attached, you shouldn’t require an employee with a disability to provide a doctor’s note to use the paid sick leave while another employee who has a cold doesn’t have to.
- A reasonable accommodation of a disability may be a leave of absence. You should provide leaves of absence consistently, whether the employee has a disability or not. Moreover, you may need to consider providing unpaid leave to a disabled employee as a reasonable accommodation if it doesn’t create an undue hardship.
- A disabled employee’s request for leave should be treated as a request for a reasonable accommodation. You may provide leave to the employee under your existing leave program, the Family and Medical Leave Act (FMLA), or workers’ compensation, but if the leave can’t be granted under any other program, you should nevertheless engage in the interactive process to determine whether some other form of leave is feasible or creates an undue hardship.
- You may need to consider exceptions to your maximum leave policies as a reasonable accommodation for a disabled employee. For example, you may allow only 12 weeks of FMLA leave per year, whether continuous or intermittent, and only a certain number of unplanned or unexcused absences per year. Depending on the circumstances, you might consider making an exception to those rules for a disabled employee if it wouldn’t cause an undue hardship.
- The interactive process applies to a disabled employee’s request to return to work. Indeed, an employee may need a reasonable accommodation—e.g., modification of duties or a work schedule—to return to her former position. If the accommodation isn’t an undue hardship and the employee’s restriction doesn’t cause a “direct threat” to safety, the accommodation may be an appropriate avenue to allow the employee to return to work.
Reminder of the interplay between the FMLA and ADA
Although it isn’t explicitly mentioned in the EEOC’s guidance document, you should remember the complex interplay between the FMLA and the ADA. Although the FMLA and the ADA are separate bodies of law, they may nevertheless both be implicated by the same employee for a single medical condition.
There are certain requirements under the FMLA an employee must meet to be eligible for and entitled to leave, while the ADA has no such eligibility requirements. What qualifies as a “serious health condition” under the FMLA may not make the same employee a “qualified individual with a disability” under the ADA. However, in spite of these differences, some employees will be a qualified individual with a disability andan eligible employee entitled to FMLA leave, which would require you to comply with both statutes simultaneously.
Thus, when an employee requests time off for a health-related condition, you must evaluate her rights under all potentially applicable statutes, including the ADA and the FMLA, and you must typically provide the employee with the “greater right” available. For example, even if an employee has exhausted all of her FMLA leave, she may still be entitled to additional leave time or a part-time schedule if it would be a reasonable accommodation of her disability and not an undue hardship on you.
Reasonableness of leave of absence under ADA
It’s also important to note that while a leave of absence may be a potentially reasonable accommodation of an employee’s disability, you aren’t expected to grant indefinite leaves of absence. To be sure, there are two limits on the bounds of reasonableness for a leave of absence. The first limit is clear: The employee must provide you an estimated date when she can resume her essential duties. Without an expected end date, you are unable to determine whether the temporary exemption is reasonable. The second is durational. A leave request must assure you that the employee can perform the essential functions of her position in the “near future.” For example, a six-month leave request may be considered too long to be a reasonable accommodation.
Physical attendance as essential job function
Remember that an employee must be able to perform the “essential functions” of her job, even with a reasonable accommodation. Essential functions are the fundamental job duties of the particular employment position at issue and are usually determined based on your judgment, job descriptions, and policies. Often, physical and regular attendance in the workplace can be considered an essential function of the job. An accommodation that allows a leave of absence when physical attendance is essential to the job may not be considered reasonable if it has an impact on your operations or the ability of other employees to perform their assigned duties.
Bottom line
Don’t hesitate to speak with an employment attorney when faced with questions about an employee’s requested leave of absence. In this age of remote access to the workplace, telecommuting, broad coverage in favor of finding an employee disabled, generous leave of absence policies, and third-party administrators of leave, it can be tricky for an employer to determine its legal responsibilities and effectively navigate through the federal laws to provide employees with the right option.
Paige Hoster Good is an attorney with McAfee & Taft, practicing in the firm’s Oklahoma City, Oklahoma, office. She may be contacted at paige.good@mcafeetaft.com.