The U.S. Equal Employment Opportunity Commission (EEOC) has issued a new resource document addressing the rights of employees with disabilities who seek leave as a reasonable accommodation under the Americans with Disabilities Act of 1990 (ADA). The document seeks to provide general information to employers and employees regarding when and how leave must be granted for reasons related to an employee's disability.

In the document issued on May 9, 2016, the EEOC advised that "[t]he purpose of the ADA's reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work. Leave as a reasonable accommodation is consistent with this purpose when it enables an employee to return to work following the period of leave."

The document reminds employers that they must provide employees with disabilities access to leave on the same basis as all other similarly situated employees. Accordingly, the EEOC says that if an employer receives a request for leave for reasons related to a disability and the leave falls within the employer's existing leave policy, it should treat the employee requesting the leave the same as an employee who requests leave for reasons unrelated to a disability. Although reasonable accommodation does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy, the EEOC asserts that an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as the unpaid leave does not create an undue hardship for the employer.

In addition to summarizing issues related to the interactive process and return to work policies, the document addresses undue hardship issues, including the amount and/or length of leave required, the frequency of leave, flexibility with respect to when leave is taken, the predictability of intermittent leave, the impact of the employee's absence on coworkers, and the impact on the employer's operations. The EEOC illustrates that employers must take a case-by-case approach when evaluating situations where an employee is only able to provide an approximate return to work date. The EEOC further articulates that requests for indefinite leave "will constitute an undue hardship."

In its press release introducing the resource document, the EEOC tells of a "troubling trend" that it has identified in ADA charges—"the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation." The EEOC maintains that such policies often serve as systematic barriers to the employment of workers with disabilities, and, therefore, issued the resource document to help educate employers and employees about workplace leave under the ADA to prevent discriminatory denials of leave from occurring.

Ballard Spahr's Labor and Employment Group routinely assists employers in ensuring compliance with the ADA and other federal, state, and local statutes and regulations.

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