CAI's Team received over 8,000 calls from members in the last 12 months and questions concerning medical leaves were the third most discussed issue. The FMLA is an obvious focus for many of these calls. However, an often overlooked issue is how the Americans With Disabilities Act comes into play around medical leaves. In fact, we have been advising members to provide additional leave beyond the FMLA's require twelve weeks as reasonable accommodation since the ADAAA (Americans with Disabilities Act Amendment Act of 2008) went into effect. Employees who are not yet eligible for leave under the FMLA also should receive consideration for accommodation for leave due to disability. Be reminded that the burden is upon the employer to prove that granting leave as an accommodation is unreasonable, causing undue hardship on the organization.
The ADA does not specifically require employers to provide medical or disability-related leave. However, it does require employers to make reasonable accommodations for qualified employees with disabilities if necessary to perform essential job functions or to benefit from the same opportunities and rights afforded employees without disabilities. Accommodations can include modifications to work schedules, such as leave. There is no set leave period mandated because accommodations depend on individual circumstances and should generally be granted unless doing so would result in "undue hardship" to the employer.
So when is a leave of absence considered an appropriate accommodation? Here are some things to consider in making your decision:
- Is the leave of absence a reasonable accommodation? The answer will vary on each case. Consider details such as the length of a continuous leave needed, the unpredictability and frequency of intermittent absences, the degree or lack of certainty of the employee’s return to work date, etc. Examples of requests that probably wouldn't not be reasonable are an indefinite leave, complete exemption from time and attendance requirements, or irregular, unreliable attendance by the employee. Also, an employer does not have to provide more paid leave than it provides to other employees.
- Will the leave be an effective accommodation for the employee? The answer depends on many factors, including the nature of the employee’s disability and their limitations, the essential functions of the employee’s job, and how the leave will enable the employee to perform the essential functions.
- Will the leave impose an undue hardship on the employer’s business? If a requested leave of absence is reasonable and effective, the employer’s only ground for denying the leave as an accommodation is that it will impose an undue hardship. To determine undue hardship the employer must take into account: 1) The nature and cost of the accommodation needed; 2) The overall financial resources of the business, the number of persons employed by the business, and the effect on expenses and resources of the business; and 3) The impact of the accommodation on the business. A moderate inconvenience or expense is not an undue hardship. There are no set rules on how long of a leave constitutes an undue hardship. The employer must support its claim of undue hardship with specific facts and evidence.
Failure to provide leave as an accommodation can be costly to employers. Pactiv LLC, an Illinois-based provider of packing solutions, recently paid $1,700,000 to conciliate a disability discrimination charge filed with the U.S. Equal Employment Opportunity Commission (EEOC). An EEOC investigation found that Pactiv discriminated against individuals with disabilities by disciplining and discharging them according to its corporate-wide attendance policies which require issuing attendance points for medical-related absences, not allowing intermittent leave as a reasonable accommodation, and not allowing leave or an extension of leave as a reasonable accommodation. This $1.7 million settlement provides monetary relief to those who have been discriminated against in the past, and ensures that the company will take proactive measures to prevent such from occurring in the future. In addition, the company will provide periodic reporting to the EEOC on all accommodation requests from employees and on all employees separated or assessed attendance points, and post an internal notification to its employees nation-wide of this conciliation.
For more information about the EEOC and ADAAA compliance go to http://www.eeoc.gov or call CAI's Team at 919-878-9222 or 336-668-7746.
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