EEOC Issues Guidance Regarding Medical Leave as an Accommodation to a DisabilityFamily, Medical, and Other Leave Discrimination
If you have a disability and need time off or a reduced schedule, you may be entitled to a medical leave under federal and/or state laws. Unpaid medical leave is often associated with the federal Family Medical Leave Act (FMLA) but, depending on the circumstances, you may also be entitled to a medical leave as a reasonable accommodation under the Americans With Disabilities Act (ADA).
The federal <a href=”https://www check these guys out.eeoc.gov/”>Equal Employment Opportunity Commission (EEOC) is the agency that enforces the employment provisions of the ADA. It recently released a new publication explaining medical leave issues under the ADA for employees and employers. The agency stated that there is a “troubling trend” in the prevalence of employer policies resulting in the denial or restriction of the use of medical leaves as a reasonable accommodation. This can serve as a systemic barrier to workers with disabilities and cause the loss of jobs of those who should continue to work.
The publication stresses some important issues, such as the following:
- employers have obligations under the ADA, independent of other laws;
- employers cannot deny a leave request simply because it does not fall within existing policies;
- an interactive process needs to take place between employees and employers where the employee needs to explain the reason for the leave and the employer can seek information from a health-care professional about the need and scope of the proposed leave; and
- an employer can deny such a request if it would impose an undue hardship on its operation.
A reasonable accommodation is a change in the work environment or the normal operation of a business that enables an employee with a disability to enjoy equal employment opportunities: for example, ignoring existing leave policies to provide a leave when it is needed due to a disability or allowing a leave if the employer has no leave policies.
Whether a proposed leave would be an undue hardship on the employer and provide a legitimate basis to deny the request should be judged on a number of issues, including the following:
- the length of the leave;
- its frequency (such as three days per week, three days per month, or every Thursday);
- the level of flexibility (to accommodate the employer) as to when the leave is taken;
- if intermittent leave is needed, whether that time is predictable (such as for scheduled treatment) or not (due to unexpected flare-ups of symptoms);
- the negative impact of the person’s absence on co-workers and whether specific job duties can be performed by others in an appropriate and timely manner; and
- the impact on the employer’s operations and its ability to serve customers/clients and in a timely manner (which can depend on the size of the employer and how many others can fill in for the employee).
If a medical leave request is denied as part of the interactive process, both sides should try to find an alternate solution agreeable to both parties.
If the employer grants leaves to its employees, it cannot discriminate against a disabled employee when deciding whether to grant the leave based on his or her disability. If an employer allows a flexible schedule for employees due to child care or to attend classes, it should not deny such a request because the one asking for the change is disabled.
An employer may have a “maximum leave” policy with a limit on time missed over a certain time frame. A request to go beyond that maximum, depending on the needs of the employee and the impact on the employer, may or may not be reasonable or an undue hardship on the employer.
An employer with a “100% healed” policy (one can return to work if the employee has no medical restrictions) would violate the ADA. The employee should be allowed to return to work when he or she can perform the essential functions of the job with or without a reasonable accommodation.
A medical leave as an accommodation under the ADA may be critical to an employee who needs a leave but does not fall under the protection of another law such as the FMLA (because he or she has not worked long enough with the employer or the employer does not have enough employees to fall under the law).
If you have any questions about medical leaves or if you feel you or a loved one has been illegally denied such a leave, contact our office so we can discuss the situation, the application of federal and state laws, and your best options to protect your rights.