How to Minimize Leave as an Accommodation
By Jenny Haykin, MA, CRC
Integrated Leaves & Accommodations
Puget Sound Energy
By Tom Sproger, MS, CEAS-II
Solutions Northwest Inc.
An individual who was new to the Americans with Disabilities Act (ADA) and the associated requirements recently asked our experts the following question about ADA accommodations.
“Some of our employees have heard they have a right to ask for leave as an ADA accommodation. Before everybody comes to me with a request for leave, I need to understand this area and have some procedures and policies in place. Please explain what I need to understand about leave as an ADA accommodation.”
Accommodation experts Jenny Haykin and Tom Sproger explain leave as an accommodation, including its limited role in the larger picture of ADA accommodations.
Consult an attorney to develop policies and procedures, but here is an introduction to this complex topic. Leave as a reasonable accommodation provides an employee with time off from work to recover. It is most commonly applied when the employee is not eligible or has exhausted job-protected leave from other laws such as the Family and Medical Leave Act (FMLA).
Before approving a request for this type of leave, you have three important considerations. First, is leave necessary? If reasonable job modifications will enable the employee to work, that will be a more productive option. To determine if this is possible, discuss the advantages of this with the employee and obtain documentation of the employee’s restrictions.
If leave is necessary, obtain documentation about the duration of the leave, making it possible to assess whether or not the leave will create an undue hardship. Many factors in addition to leave duration may determine if a leave results in “undue hardship” to the employer, particularly the effect of the increased workload on other workers, and how it affects the flow of work.
Finally, if the leave is long term or indefinite, the employee may no longer be qualified to hold the job in question. A September 2017 court case in the U.S. 7th Circuit Court of Appeals, Severson v. Heartland Woodcraft, Inc., found the employee’s need for an unspecific, two-to-three-month leave extension beyond the 12 weeks of FMLA sufficient to render the employee not qualified for his job. Other cases, however, have found longer leave durations to be reasonable.
An important distinction between FMLA leave, and leave as a reasonable accommodation, is the extent of the employer’s rights. FMLA does not allow an employer to deny or limit leave if it creates a hardship, or if other accommodations would be more effective, whereas leave as a reasonable accommodation does. It is important to inform employees how these leaves differ if they transition from FMLA to leave as a reasonable accommodation.
Employees who know their company will make a good faith effort to accommodate them are more likely to advocate for themselves at the doctor’s office, requesting documentation of their limitations so they can pursue accommodations to stay at work rather than seeking leave. In situations where an employee can attend work with the help of a job modification, looking at reasonable accommodations other than leaves is a positive first step.
Ultimately, you want a company culture that motivates employees to do what they can to be on the job. Employees are more likely to seek accommodations to work instead of requesting leave in that type of culture, making it a win for both the employer and the employee. If employees have FMLA leave available, and have a supportive environment to keep working, ADA leaves can be greatly reduced.