By Norasha L. Williams, JD, Cozen O’Connor
Quite possibly as a direct consequence of what the Equal Employment Opportunity Commission (EEOC) describes as a “troubling trend” in the prevalence of employer policies denying or restricting the use of leave as a reasonable accommodation, the Commission recently issued guidelines emphasizing the necessity to offer leaves of absence as reasonable accommodations under the Americans with Disabilities Act.
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The new guidance— which the EEOC notes “creates no new agency policy” and instead reiterates its long-standing position on leave as an accommodation— highlights the most common problems the Commission encounters with reasonable accommodations that run afoul of the ADA.
Leave policies must promote more flexibility
Equal access—The EEOC reiterates that employees with disabilities must be given equal access to leave as other similarly-situated employees. Thus, where an employer receives a disability-related leave request that falls within an existing leave policy, so long as the employer treats the request the same as a request for leave unrelated to disability, then it will have provided equal access to leave.
It would be impermissible, however, to change the classification of the leave (e.g., from annual leave to sick leave) merely because it is disability-related, where, for example, under the employers’ policies employees are permitted to use annual leave for any purpose.
Unpaid leave—What might be surprising to some is that an employer must consider providing unpaid leave as a reasonable accommodation if an employee requests it, and if it does not create an undue hardship. This is true even if the employer does not offer leave as a benefit, the employee is not eligible for leave under the employer’s policy, or the employee has already exhausted the employer-provided leave.