By now, South Carolina employers know about the Americans with Disabilities Act (ADA) and, generally speaking, what that means for how they treat their employees and customers. The Equal Employment Opportunity Commission (EEOC) enforces Title I of the ADA. Under the ADA, employers with more than 14 employees must provide reasonable accommodations to applicants and employees with disabilities.
The employment world is familiar with reasonable modifications or accommodations in terms of things like access to buildings and allowing employees to take extra small breaks throughout the day or work from a standing or sitting position based on their restriction. But did you know that these accommodations apply to leave policies as well? Making a reasonable accommodation may be changing leave policies or providing leave when needed for a disabled worker, even if not offered to other workers.
The purpose of the ADA’s reasonable accommodation is to require employers to change the way things are normally done to allow employees with disabilities to work. One way this surfaces in the workplace is when an employee requires leave not offered to other employees. An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation, so long as it doesn’t unduly burden the employer. The employer may be required to do this even if it doesn’t offer leave as an employee benefit, the employee is ineligible for leave under the employer’s policy, or the employee has used all the leave available to him or her under the policy and/or FMLA.
When leave is required as an accommodation, the employer is NOT required to pay the employee for additional leave in excess of what it provides to other employees. However, an employee can’t be punished for using the leave. For example, a disabled employee who requires three months of unpaid leave, which was granted by the employer, can’t then be chastised for not meeting production quota as a result of missing those three months. As with other accommodations, the employer can deny the request if it can prove the accommodation would cause an undue hardship on the business operations or finances.
Communication about Leave
As a general rule, any leave requested due to a medical condition should be considered as a reasonable accommodation. If the leave can’t be granted through the employer’s leave policy, the FMLA, or worker’s compensation, then the employer should start an interactive process with the employee to give the employer relevant information to determine whether the leave can be granted by the employer without causing an undue hardship. Questions should focus on:
- The specific reason the employee needs leave (surgery, adjustment to new medications, training a new service animal, etc.);
- Whether the leave will be a block of time or intermittent (one day per week versus three months at once); and
- When the need for leave will end.
The employer can ask questions of the employee’s healthcare provider to confirm or elaborate on the need for leave so long as the employee consents.
How to Handle the Employee’s Return to Work
An employer will violate the ADA if it requires an employee with a disability to have no medical restrictions – or be 100% recovered – before returning to work if the employee can do his or her job with or without a reasonable accommodation (unless the accommodation would cause an undue hardship). If an employee does return to work with restrictions, the employer can ask why the restrictions are required and how long they will last. The employer can ask the same questions of the employee for the accommodations returning to work as those listed above for requesting leave as accommodation.
How Much Leave is Too Much?
If an accommodation would cause an undue hardship to the employer, the ADA doesn’t require the employer to grant it. Consider the following when thinking about leave causing an undue hardship:
- The amount/length of leave of required;
- The frequency of the leave;
- Whether there is flexibility in terms of the days the leave is taken (can a treatment appointment always scheduled on a Monday be moved to another day if Monday causes a hardship);
- Whether the need for intermittent leave is predictable or unpredictable;
- The impact of the employee’s absence on coworkers and whether the job duties can be performed in a timely and correct manner (is this coworker the only coworker with a certain skill set); and
- The impact on the employer’s operations and its ability to serve its customers/clients, which takes into consideration the size of the employer.
Leave as a reasonable accommodation does include the right to return to the employee’s original position after the leave is over. However, if holding the job open would cause an undue hardship on the employer, it must consider alternatives to allow the employee to complete leave and return to work.
What to Do when an Employee Requests Leave as an Accommodation
The EEOC has issued a number of documents that discuss how the ADA addresses various leave issues. If you have an employee requiring reasonable accommodations or requesting leave as accommodation, contact an experienced employment lawyer at our firm to determine what policies should be in place in your business and how to handle the employee’s situation to permit leave and keep your business running smoothly.