An employer can establish attendance and leave policies that are uniformly applied to all employees, regardless of disability, but may not refuse leave needed by an employee with a disability if other employees get such leave. An employer also may be required to make adjustments in leave policy as a reasonable accommodation for a worker with a disability. The employer is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave.
A uniformly applied leave policy does not violate the ADA because it has a more severe effect on an individual because of his or her disability. However, if an individual with a disability requests a modification of such a policy as a reasonable accommodation, an employer may be required to provide it, unless it would impose an undue hardship. For more information, see our page on disability leave.
A disabled employee may also be eligible for leave under the Family & Medical Leave Act. For more information, see our page on family/medical leave.
On May 9, 2016, the EEOC published a guide entitled Employer-Provided Leave and the Americans with Disabilities Act. The guide is broken into 6 key areas highlighting issues for employers to consider when employees need medical leaves of absence not covered by the FLMA. Under these guidelines, your employer must:
Provide disabled employees with access to the same leave of absence rules as non-disabled employees;
Consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer;
Promptly engage in an “interactive process” with the employee, a discussion that focuses on the reasons for the leave, whether it’s blocked or intermittent, and its expected duration. The process may include confirming information from the employee’s health care provider, when an employee requests leave as a reasonable accommodation;
Avoid unlawful policies. Policies that place a cap on leaves of absence, without consideration for modifications or extensions as reasonable accommodations, are unlawful under the ADA.;
Avoid “100% Healed” policies. Policies which mandate that an employee be fully recovered before returning to work and are unlawful. Instead, consider reasonable accommodations that will enable an employee to return before they are fully recovered, this might include temporary transfer to a vacant position; and
Consider undue hardship. Depending on the duration and frequency of the leave, and the impact on the employer’s business, a leave of absence might be an undue hardship that an employer need not offer. An open-ended, indefinite leave is always an undue hardship; other types of leave should be evaluated for undue hardship on a case-by-case basis.