ADA Leave Compliance: Are You Sure Your House Is in Order?
By Lori Welty, JD
Disability accommodations required under the Americans with Disabilities Act (ADA) include a broad array of adjustments, ranging from alterations to a workspace to the ability to work from home. Another type of accommodation has received more attention in the absence management industry lately: leave as an accommodation, a period of time off work designed to enable a disabled employee to return to work.
Employers can find themselves at substantial litigation risk if they do not carefully consider leave as an accommodation prior to terminating an employee who cannot return to work following an absence. To protect themselves, leave managers need to exhaust the interactive process by conducting a complete evaluation of requested accommodations. Employers have recently been hit with hefty judgments and Equal Employment Opportunity Commission (EEOC) consent decrees, proving that a one-size-fits-all approach can cost a company millions. It is in all parties’ best interests to establish and utilize a comprehensive process to evaluate each accommodation for compliance.
Keeping It in Order: An Employer Checklist
Employers are recommended to use repeatable standards to determine whether an accommodation is reasonable and required under the ADA. There are three recommended tests to assess an accommodation request:
- Is a leave of absence accommodation reasonable (plausible or feasible)?
- Is a leave of absence accommodation effective? Will the time off enable the employee to return to work and perform the essential functions of the job?
- Does a leave of absence accommodation impose an undue hardship on the employer?
The answers to these three questions can guide employers in determining whether time away from work is appropriate.
Test One: Is This Leave a “Reasonable” Accommodation?
An employer must engage in the interactive process upon any request for an accommodation, even after job-protected absence is exhausted, to determine if additional leave can and/or must be offered as a reasonable accommodation.
Determining whether a leave is a reasonable accommodation can be subjective and may involve factors such as length and frequency of absences, potential unpredictability of intermittent absences, and establishing how long the leave can last and still be considered reasonable. Employers largely have to rely on their own judgment and analysis of each individual circumstance. There are few hard and fast rules when it comes to whether leave is a reasonable accommodation. In fact, both the EEOC and court opinions emphasize that a case-by-case analysis is necessary. Nonetheless, there are a few guidelines that can help provide direction to shape an employer’s approach:
- An employer can expect an employee to provide an estimated return-to-work (RTW) date. Without an expected end date, an employer is not expected to be able to determine whether leave is a reasonable
- The leave request must confirm to an employer that an employee can perform the essential functions of his or her position in the “near future.” Because near future is not defined, employers are advised to use the three accommodation tests to help determine whether the leave is reasonable, effective, and not an undue hardship on the employer.
While the EEOC doesn’t expect employers to offer paid leave as a reasonable accommodation, employers must treat all employees equally in this regard. If paid leave is offered to similarly situated employees, it must be offered to disabled employees.
Test Two: Is This Leave an “Effective” Accommodation?
After assessing whether an accommodation is reasonable, we must consider whether it will be effective. This means that the accommodation must enable the employee to perform the essential functions of the job. Employers can use the following criteria to determine whether a leave is effective in supporting this goal:
- The nature of the employee’s disability and limitations
- The anticipated duration of the leave
- The employee’s position, including essential and marginal functions
- How the leave will enable the employee to return to work to perform essential job functions
- The likelihood (not necessarily a certainty) that the employee will be able to perform essential job functions at the end of the leave
- The success or failure of past accommodations attempted for the employee
- Whether other accommodations (such as ergonomic adjustments, schedule changes, work from home, reasonable changes to job descriptions such as avoiding heavy lifting, etc.) could achieve a satisfactory result
Test Three: Would Leave Impose an Undue Hardship on the Employer?
Even if leave as an accommodation is reasonable and effective and other accommodations would not achieve a satisfactory result, one more criteria must be met. An employer is not required to provide leave as an accommodation if it will cause undue hardship on the employer’s business.
The EEOC’s criteria for undue hardship include:
- Financial difficulty: This may be difficult to prove, especially for large employers. To determine if an accommodation presents a financial hardship to the employer, the EEOC may relate the cost to the budget of the entire corporation or business unit (depending on several factors); at that scale, the cost of an accommodation may look relatively small. Also, before employers claim financial hardship, the EEOC expects them to explore third parties and outside resources to support the cost of a leave, such as state funding or tax credits.
- Operational difficulty: This includes whether an accommodation is unduly extensive, substantial, disruptive, or would alter the fundamental nature of the business operation.
When claiming hardship, employers should meticulously collect and document facts and evidence. Employers should be cautious before denying any accommodation based on undue hardship, including a leave. An employer may regard many accommodations as a hardship but should consider consulting with legal counsel before rejecting a requested accommodation and making adverse employment actions. The legal definition of hardship is sufficiently complex that what is an undue hardship for one employer may not be for another.
Impact of the Recent 7th Circuit Court Decision
The 7th Circuit Court of Appeals, in Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir., September 2017), recently disrupted the settled understanding of an employer’s obligation to provide leave as an accommodation. Subsequent decisions have embraced Severson’s approach, including a case in the 6th Circuit Court of Appeals, Cooley v. E. Tenn. Human Resources Agency, No. 17-5355 (Dec. 22, 2017). These cases shift the focus from whether a leave of absence accommodation is reasonable to whether the employee can be considered a “qualified individual with a disability.”
In Severson, recognizing that a qualified individual with a disability is one who, with or without reasonable accommodation, can perform the essential functions of the job, the court held that the term reasonable accommodation is limited to those measures that will enable the employee to work. The court went on to conclude that an employee who needs long-term medical leave cannot work and thus is not a ”qualified individual” under the ADA.
The court acknowledged that this analysis leaves open the possibility that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances. This would include intermittent time off or a short leave of absence. But the court was unequivocal in stating that a medical leave spanning multiple months does not permit an employee to perform the essential functions of the job, therefore removing the employee from the definition of a “qualified individual.”
The court did not hesitate to reject the EEOC’s interpretation of leave as an accommodation, calling the agency’s interpretation “untenable,” further stating that “a long-term leave of absence cannot be a reasonable accommodation” and “an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.”
Employers, however, should be cautious about making dramatic changes in their accommodation policies. The EEOC plainly interprets the ADA to require a leave of absence as a reasonable accommodation in many circumstances — and the EEOC is the agency that will first receive a claim of disability discrimination. Moreover, a history of sizable judgments and consent decrees should continue to serve as a warning to employers considering curtailing leaves as an accommodation.
Employers can find themselves in a difficult situation when it comes to leave as an accommodation under the ADA. For employers considering adverse employment action when employees request leave as an accommodation, it is essential to engage in a rigorous interactive process with thorough, individual evaluations to ensure ADA compliance. The three tests outlined can help employers stay on the right side of the law, but remember: the answers uncovered are likely to be subjective. Proactively establishing a clear process and assessing each request on a case-by-case basis will allow an employer to be prepared when an employee requests leave as an ADA accommodation.