The Americans with Disabilities Act (ADA) requires employers to provide a reasonable accommodation to a qualified employee with a disability, except when the accommodation would cause an undue hardship to the employer.
Although ADA regulations don’t specifically identify leave time as a reasonable accommodation, courts and guidance from the EEOC clarify additional time off from work could be a reasonable accommodation.
If an employee has exhausted all leave, a district must consider providing additional unpaid leave time, if:
- the time off is required because of a disability,
- there isn’t another alternate accommodation instead of leave, and
- the time off doesn’t cause undue hardship to the district.
Amount of Leave Time
The amount of leave time that must be granted as a reasonable accommodation is dependent on the specific circumstances of each situation and should be addressed as part of the ADA interactive process with the employee. It’s clear, however, that indefinite leave isn’t considered reasonable under the ADA.
In their guidance on this issue, the EEOC provides the following factors for consideration in determining whether granting additional leave time as an ADA accommodation would cause undue hardship:
- the amount and/or length of leave required
- the frequency of the leave
- whether there is any flexibility with respect to the days on which leave is taken
- whether the need for intermittent leave on specific dates is predictable or unpredictable
- Example: the specific day an employee needs leave because of a seizure is unpredictable. Intermittent leave to obtain chemotherapy, however, is predictable
- the impact of the employee's absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner
- Example: only one coworker has the skills of the employee on leave and the job duties involved must be performed under a contract with a specific completion date, making it impossible for the employer to provide the amount of leave requested without over-burdening the coworker, failing to fulfill the contract, or incurring significant overtime costs
- the impact on the employer's operations and its ability to serve customers/clients appropriately and in a timely manner
- Example: the size of the employer
Practical Suggestions and Reminders
Make sure to engage in the interactive process. Through the interactive process, you may determine an accommodation is not required at all because the employee:
- is able to return to work now
- has no expected return to work date
- is unable to perform the essential functions of the job even with an accommodation
Additionally, as part of the interactive process, you may identify possible reasonable accommodations other than additional leave time. The district only is required to provide an effective reasonable accommodation, not necessarily the employee’s preferred accommodation.
Districts also should make sure medical documentation is current and accurate. The EEOC explains what information the employee can request from the medical provider to make a determination about granting leave as an ADA accommodation:
- the specific reasons the employee needs leave
- Example: surgery and recuperation, adjustment to a new medication regimen, training of a new service animal, or doctor visits or physical therapy
- whether the leave will be a block of time
- Example, three weeks or four months), or intermittent (for example, one day per week, six days per month, occasional days throughout the year)
- when the need for leave will end
Additionally, districts should conduct a case-by-case analysis for each situation. The ADA requires an individualized assessment, especially when considering leave as a reasonable accommodation. Whether an employee qualifies for additional leave under the ADA and how much leave is dependent on the individual circumstances of the employee and the employee’s position.
Lastly, districts should maintain complete and confidential documentation. The medical documentation should be current as of the requested leave date, and as with all medical related information, medical documentation related to ADA accommodations must be confidential and kept separately from an employee’s personnel file.
Subscribe to HRX
Stay up to date with all the latest HR news and trends by joining the HRX mailing list!