Beyond FMLA Leave: The Undefined Limits of Leave As a Reasonable Accommodation

Under the Equal Employment Opportunity Commission’s (EEOC) new guidance on employee disability leaves, employers are required to provide disability accommodation leave and reinstatement rights even for disabled employees who have exhausted all FMLA and other required or permitted medical leaves, unless the employer can show undue hardship. The new resource document, entitled Employer-Provided Leave and the Americans with Disabilities Act,states that employers are required to provide job protections and reinstatement rights beyond those expressly required under the Americans with Disabilities Act and the Family and Medical Leave Act (FMLA). Although the resource document does not have the force of law or regulation and the EEOC says that it is not intended to change the law, the guidance provides examples and insight into how the EEOC intends to enforce an employer’s obligation to provide disability accommodation leave and reinstatement rights to employees with disabilities.

Compliance with leave and reinstatement laws is among the most challenging areas of employment law. Read on for highlights and practice tips on compliance. 

Background: Leave as a Reasonable Accommodation Under the ADA and State Law: Exhausting FMLA Leave is Not the End of the Story

The ADA and anti-discrimination laws in many states (including California, Washington, Oregon, Alaska, and New York) require employers to provide “reasonable accommodation” to qualified employees and applicants with disabilities. Existing law provides that a leave of absence may be required as a possible reasonable accommodation, and failure to consider providing leave may violate legal requirements. In the resource document, the EEOC reinforces that employers must consider providing unpaid leave as a reasonable accommodation, as long as the leave does not create an undue hardship for the employer.

This is true even if the employee has already used up all available leave (including all protected leave under the FMLA and similar state laws), even if the employee is not entitled to leave under the employer’s policies, and even if the employer does not offer paid or unpaid leaves. That means that even after FMLA and similar state leaves of absence have been exhausted, if an employee is not yet ready to return to work, an employer may not discharge the employee without first considering additional leave as a reasonable accommodation under the ADA and state law.

Undue Hardship and “Indefinite” Leave: When Can an Employer Deny a Request for Leave?

An employer is not required to grant a request for leave as a reasonable accommodation if it would create an “undue hardship.” Whether a leave would create an undue hardship must be evaluated on a case-by-case basis, and there are no defined limits of what is or is not reasonable. A number of factors should be considered, including the length of the leave; the frequency of the leave; if the request is for intermittent leave, whether the time off needed occurs on a predictable schedule; the impact of the employee’s absence on coworkers; and the impact on the employer’s operations and ability to serve customers/clients in a timely manner, which takes into account the size of the employer. Thus, a small employer is more likely able to show that the leave will impact its operations due to having fewer employees and more limited resources. If an employee has already taken leave, an employer is permitted to consider the impact of leave already taken in determining whether additional leave would create an undue hardship.

The EEOC resource document, consistent with the ADA and state case law, confirms that an employer does not have to provide an “indefinite leave” of absence as a reasonable accommodation, because indefinite leave will constitute an undue hardship. The EEOC defines an “indefinite” leave as when an employee cannot say whether or when she will be able to return to work. The resource document does not, however, address the more common situation employers face when an employee repeatedly extends his or her leave, providing a definitive return to work date or date range each time, but not actually returning to work or returning to work for only a short period of time before requesting additional time off. Employers may find themselves assessing whether an employee’s repeated extensions have, in essence, become a request for indefinite leave and thus an undue hardship. There is no bright-line rule for when enough time has passed that additional leave is no longer required, however. Employers should therefore carefully consider whether the additional leave would be an undue hardship under the circumstances and consult employment counsel.

Holding the Employee’s Job Open: What Should an Employer Do?

In the resource document, the EEOC takes the position that under the ADA, an employee on disability accommodation leave is entitled to return to his or her original position at the end of leave, meaning the employer must keep the position open for the employee unless the employer can show undue hardship. This is so even if the employee has run out of job-protected leave under the FMLA or similar state laws. If it would create an undue hardship to continue to hold the employee on leave’s position open – either at the time the leave is granted or later –the employer must consider whether there are alternatives that allow the employee to return to work at the end of leave (such as reassignment to another vacant position for which the employee is qualified, with or without reasonable accommodation).

Courts analyzing the ADA and related state laws have held that holding a job open for a disabled employee on leave is one form of reasonable accommodation where it appears likely that the employee will be able to return to an existing position at some point in the foreseeable future. Therefore, if an employee has requested a finite leave, supported by a health care provider’s statement as to medical restrictions on the employee’s ability to perform the job, and is expected to return “in the foreseeable future,” it is generally recommended that an employer hold the position open for the employee. On the other hand, an employer is not required to hold a position open indefinitely and, even if the leave is finite, an employer is not required to hold a position open if it causes an undue hardship.     

Other Reminders from the EEOC’s Resource Document

• Maximum Leave Policies: An employer with a policy setting a maximum amount of leave in a given period must consider whether making an exception to the policy – allowing more leave for a finite period beyond the maximum – is a reasonable accommodation.  Unless providing additional leave causes an undue hardship, an employer will generally be required to grant leave beyond the policy maximum.
• The Interactive Process: If an employee with a disability requests leave, and the leave can be addressed through the employer’s leave program, the FMLA, or workers’ compensation program, the employer can provide the requested leave under the relevant program.  But if the employee is not entitled to or eligible for leave under any employer program, the employer must then consider providing leave outside of any program as a reasonable accommodation.  That requires the employer to engage with the employee in an “interactive process” to determine the need for and duration of the leave and whether other (or additional) reasonable accommodations are necessary.
• Returning to Work with Restrictions: An employee with a disability who is ready to come back to work from leave may require additional reasonable accommodations.  The resource document reinforces that as long as the employee can perform the essential functions of his or her job, an employer typically cannot require the employee to be “fully healed” in order to return.  If the employee is released to return to work with restrictions, the employer must engage again in the interactive process to determine if reasonable accommodations are available to meet the employee’s medical restrictions. 
• Reassignment as Reasonable Accommodation: In some cases, an employee’s medical restrictions will prevent him or her from performing one of the essential functions of his or her current position.  In that situation, the employer must consider reassignment to a different position as a reasonable accommodation.  The EEOC takes the position that a disabled employee must be placed into an open position for which he is otherwise qualified, with or without reasonable accommodations.  That means that a disabled employee seeking reassignment may need to be given preference, even over more qualified candidates (with some limited exceptions).  However, the employer is not required to create a position for the employee, move another employee, promote the employee, or violate another employee’s rights. 

Practice Tips

• If your organization has a policy setting a maximum amount of leave, include an exception in the policy and specify that the employer may provide unpaid leave as an accommodation beyond the leave maximum on a case-by-case basis.
• If an employee with a disability is nearing the end of his or her protected leave, or reaching the maximum amount of leave allowed under your policy, do not discharge or replace the employee without first considering whether additional unpaid leave is available as a reasonable accommodation.
• If an employee with a disability requests leave but is ineligible for leave under the FMLA, a similar state law, or your policies, do not deny the request for leave without first considering whether unpaid leave would reasonably accommodate the employee.
• If an employee with a disability requests leave (or to extend an existing leave) as a reasonable accommodation and granting the request may cause an undue hardship, proceed with caution, and consider consulting with employment counsel before denying the request.
• If an employee with a disability is on an extended leave and you determine that you can no longer hold the position open without creating an undue hardship, consult with employment counsel before discharging the employee or filling the position with another applicant or employee.

Conclusion

If an employee with a disability requests leave, the employer should carefully consider the request.  A leave of absence may fall within the employer’s leave policy, may be protected leave as provided for in the FMLA and similar state laws, or may be a reasonable accommodation under the ADA or state law.  The employer should consider all of these possibilities in evaluating whether to grant or deny a request for leave.