A new compliance nightmare is driving employers batty: administering leave as an accommodation under the ADA. It’s not hard to slip up and put yourself right in the crosshairs of your employees’ attorneys.
One of the more common mistakes: refusing to let employees take additional leave as an accommodation, believing FMLA and/or a company’s own leave policies provide all the time off required under law — only to find out the hard way that the EEOC or courts disagree.
The reality: If an employee has an ADA-covered disability and requests leave, you’ve got to consider it as an accommodation under the ADA — regardless of whether the employee’s exhausted FMLA leave or exceeded the limits in your leave policy
Employment law attorney Penny C. Wofford from the firm Ogletree Deakins is here to help. In a presentation at SHRM’s 2015 annual conference, she said employers must consider two things when workers request ADA leave:
1. Is it effective?
First, employers have to determine how likely it is that workers will be able to perform all their essential job functions after the leave.
Consider the amount of time off requested versus how confident his or her doctor is that the worker will be able to perform their duties when they return.
An employee is only entitled to leave as an accommodation if it helps him or her get back to performing the essential functions of his or her job (possibly with some other, lesser accommodation).
An important thing to remember: If a worker keeps requiring extensions, it’s less likely that leave is truly an effective accommodation, Wofford says.
2. Is it reasonable?
Employers’ individual leave policies don’t matter much when the ADA is involved.
So if your policy offers six months of leave, and a worker says he or she needs more time off, you still need to consider the option if it would help them to return to work and it doesn’t create an undue hardship.
But there is one time when employers’ leave policies count under the ADA: They affect how much time off a court will consider reasonable for a worker to be off at your organization.
Example: Courts will ask, if it’s not burdensome for workers to be gone six months, per your policy, why was it a hardship for them to be gone another three months to heal?
To assess if a worker’s leave request is unreasonable, employers also need to record specifics about how the worker’s absence is negatively affecting operations. Wofford recommends looking at how the worker’s facility will be affected, for example:
- Will you need to bring in temporary workers to cover duties? (If so, this tips the scales toward being unreasonable.)
- Would there be a disproportionate amount of work for other employees? Will it affect those workers’ productivity or their morale? (The bigger the impact, the less reasonable the request is.)
It’s important to remember that each case is different and should be evaluated on its own merits — and financial hardships are hard to justify in court.
4 defensible prevention steps
Additionally, Wofford notes four steps employers can take to support their decisions should they be questioned in court:
- Be specific with your requests. Ask doctors for estimates on when workers may be able to return to work and how confident they are the person can perform their essential duties when they return.
- Tell workers what’s expected of them for approval. Spell out how long they have to return forms, how quickly they need to contact you if there’s an issue getting the information and the consequences for not handing in the forms on time.
- Don’t grant it and forget it. Keep the lines of communication open and establish a return-to-work date or whether the leave can be extended before any leave period runs out.
- Build wiggle room into leave policies. Let workers know you’ll offer shorter intervals of leave on a case-by-case basis after your other leave policy reaches its limits. This lets you assess the workers’ recovery and cap leave if it becomes unreasonably burdensome.
Cite: “Leave as Reasonable Accommodation: How Much is Enough and is Anything Unreasonable,” a presentation by Penny C. Wofford at the SHRM 2015 Annual Conference.