by Farrah N.W. Rifelj
Originally published: May 19, 2016
On May 9, 2016, the Equal Employment Opportunity Commission (EEOC) published Employer-Provided Leave and the Americans with Disabilities Act on its website to clarify and reiterate that unpaid leave may need to be offered as a reasonable accommodation for a disability. The Guidance stresses that employers must not only offer unpaid to leave on the same basis of similarly situated employees who are not disabled, but they may also need to offer additional unpaid leave as a reasonable accommodation.
The Guidance does not constitute a regulation, but it represents the EEOC’s legal position on these issues. It also provides a cumulative resource on one of the more problematic aspects of the reasonable accommodation process—employee leave.
Leave as an Accommodation
The Guidance provides that where an employer receives a request for leave for a disability and the leave falls within an existing policy, the employer must treat this employee the same as an employee who requests leave for other reasons. However, this is not the end of the line. Additional leave may be required as reasonable accommodations under the Americans with Disabilities Act (ADA). The Guidance states that the purpose of the ADA’s reasonable accommodation requirement is to “require employers to change the way things are customarily done to enable employees with disabilities to work.” According to the Guidance, before denying a request for time off where the employee is not eligible for any other leave, the employer “must consider providingunpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.”