17 May Employee Leave Protections Under the ADA
Title 1 of the ADA prohibits employers with 15 or more employees from discriminating against employees based on disability. Employers must also provide “reasonable accommodations” to the employees with disabilities — unless such accommodations would cause undue hardship.
Reasonable accommodations are workplace changes that enable disabled employees to carry out their essential job functions. Such accommodations may take the form of employee leave.
According to the Equal Employment Opportunity Commission (EEOC) — which enforces the ADA — reasonable accommodations can include modifying existing leave policies and “providing leave when needed for a disability, even where an employer does not offer leave to other employees.”
In addition, employees with disabilities must be given equal access to leave if the requested time off falls within the employer’s current leave policy.
Understanding Equal Access
If an employee’s reason for requesting leave is related to his or her disability and the leave falls within your existing leave policy, you must treat the request the same way you would treat a request that is not related to a disability.
For example, if your leave policy provides three sick days per year and does not require a doctor’s note, it’s a violation of the ADA to ask a disabled employee who takes leave under that policy for a doctor’s note.
If you’d like the employee to provide a doctor’s note, then you should have a policy requiring all employees to submit a doctor’s note.
Note that to accommodate disabled employees, you can establish policies that are different from or go beyond your regular leave policies. You might, for example, develop maximum leave policies.
Creating Maximum Leave Policies
As noted by the EEOC, maximum leave policies come in various forms. Commonly, employers — especially those covered by the Family and Medical Leave Act (FMLA) — provide up to 12 weeks of extended or intermittent leave. Some maximum leave policies have a limit higher than 12 weeks, along with a cap on the number of unplanned absences that employees can take during a 12-month period. For some employees with disabilities, these types of maximum leave policies may suffice.
For others, however, it may be necessary to modify the policies as a reasonable accommodation. For example, because of his or her disability, an employee may require periodic unplanned absences, which may exceed the number of days allotted by the maximum leave policy.
Making Your Decision to Grant Leave
Under the ADA, the employer has the final say regarding which reasonable accommodations it will offer. However, the EEOC recommends engaging in an interactive process with the employee before arriving at a conclusion. This way, you’ll be able to better understand the nature of the disability and how it’s obstructing the employee’s competency at work. You’ll also be able to determine whether to grant the employee time off under your existing leave policies or whether he or she should be given additional leave as a reasonable accommodation.
This information is provided with the understanding that Payroll Partners is not rendering legal, human resources, or other professional advice or service. Professional advice on specific issues should be sought from a lawyer, HR consultant or other professional.