By Martha J. Cardi, JD, Reed Group Chief Compliance Officer, and Megan G. Holstein, J.D., Reed Group Senior Counsel, Compliance and Employment Law
An employee’s request for a leave of absence as an accommodation under the Americans with Disabilities Act (ADA) poses Human Resource (HR) challenges. The EEOC is pursuing violations of employers’ ADA obligations, obtaining multi-million dollar consent decrees against employers for absence policies that violate the ADA. Employers are asking when, why, and how much leave must be provided as an ADA accommodation.
The purpose of leave as an accommodation is to give the employee time to become able to perform the essential job functions upon return to work. The need for leave must be related to the disability and enable the employee to perform those functions. Examples of appropriate ADA leave reasons include recovering from an injury or receiving counseling. The length of an ADA leave must be determined on a case-by-case basis.
The employer should analyze an employee’s leave request through the ADA’s interactive process, which asks three questions:
- Is a leave of absence reasonable? On its face, is the proposed leave feasible? The employer can require the employee to provide an estimated date of return to help make this assessment.
- Is leave an effective accommodation? Will it enable the employee to perform the essential job functions upon return? Factors include the nature of the employee’s disability, limitations, and job duties, and how leave will enable the employee to perform his or her job.
- Does the proposed leave impose an undue hardship on the business? This includes a “significant difficulty or expense” in relation to the employer’s size, available resources, and the nature of the operation. The employer must support its position with specific business facts.
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