New EEOC Guidance on Employer-Provided Leave Under the Americans with Disabilities Act


By:  Michael Hill

The EEOC recently issued new guidance on employer-provided leave under the Americans with Disabilities Act (ADA), which contains useful information on the EEOC’s focus relating to providing reasonable accommodations for employees with disabilities.  Employers should review their leave policies in light of this new guidance to ensure compliance.

For instance, most employers that offer leave have a certain maximum number of days or weeks that an employee may apply towards leave.  Some employers also require their employees to have worked a certain amount of time (e.g., 30 days) before being permitted to take leave.  The EEOC’s guidance makes clear that such policies cannot stand in the way of an employee with a disability who requires leave as a reasonable accommodation.  Unless doing so would constitute an undue hardship, an employer must consider making an exception to its leave policy and providing additional leave to an employee with a disability if the employee requires it.  This rule applies even if the employer does not offer leave as an employee benefit (but leave provided as a reasonable accommodation does not have to be paid leave).

Another practice that raises a red flag for the EEOC is the “100% Healed Policy,” under which an employee is not permitted to return to work unless he or she is “100%” healed or recovered.  Such policy violates the ADA if the employee at less than 100% is able to perform the necessary functions of the job with or without reasonable accommodation (unless accommodation would pose an undue hardship).  Similarly, not permitting an employee with a disability to return from leave for fear that his or her medical restriction poses a safety risk will violate the ADA unless the employer can show that employee’s disability poses a “significant risk of substantial harm” to self or others.  An employer that wishes to take this position will be expected to back it up with specific facts—not mere assertions—and to show that it considered whether a reasonable accommodation could eliminate this threat.

Sometimes the reasonable accommodation may not be additional leave but reassignment to a different job position.  Here, the EEOC emphasizes that, if an employee with a disability is qualified for another position, and such reassignment would be a reasonable accommodation for his disability, he should not just receive an equal opportunity to compete for that other position—he should receive the position.  This emphasis on not making the disabled employee compete for the job essentially means that he should get the job even if another candidate is more qualified (unless giving it to the disabled employee would be unduly burdensome).  This nuance could present a pitfall to the unwary employer who believes equal employment opportunity is all that is required.  As the EEOC has stated elsewhere, “reassignment means that the employee gets the vacant position if s/he is qualified for it.  Otherwise, [if merely permitted to compete,] reassignment would be of little value[.]”

It is a good practice for employers to review their employment policies periodically to ensure they still are in compliance with the law, particularly on issues where the EEOC has announced its focus.