EEOC Holds Public Hearing on Leave as a Reasonable Accommodation

On June 8, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) considered the use of leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) by assembling a diverse panel of experts to voice their opinions. Under the ADA, an employer must provide a disabled employee with reasonable accommodations that will allow him or her to perform the essential functions of the job. However, an employer does not need to provide accommodations that subject it to an undue hardship. When disabled employees request a leave of absence as a reasonable accommodation, employers are faced with the question of how much leave they must provide in order to comply with the ADA. That question often arises when a disabled employee exhausts all available leave time and is still not able to return to work. At the June 8 hearing, representatives for employers expressed their view that attendance itself can be an “essential function of the job” and that unplanned or extended absences are difficult for employers to manage. Employee representatives responded that leave is a critical accommodation that allows many disabled employees to stay in the workforce, and that the “entire purpose of the leave is vitiated if the employee recovers but is terminated or otherwise barred from returning to work.” The EEOC’s dominant message was that employers need to be flexible when applying their leave policies to disabled employees and that employers which enforce a bright line rule requiring a disabled employee to return to work or be terminated when his/her available leave is exhausted could be exposing themselves to liability under the ADA. Employers should instead analyze whether extended leave is a reasonable accommodation in the same way that they would analyze any other request for accommodation — by performing a individualized analysis to determine whether the accommodation is required by the ADA (i.e., whether the extended leave will allow the employee to perform the essential functions of the job without subjecting the employer to an undue hardship). The EEOC plans to issue updated guidance on when extended leave is warranted under the ADA, potentially by the end of this summer.