Employer Provided Leave and the Americans with Disabilities Act

Disability discrimination charges filed with the Equal Employment Opportunity Commission (“EEOC”) has increased over six percent since 2015. The majority of claims allege employers fail to grant reasonable accommodations to qualified individuals with a disability. An accommodation is considered reasonable if it does not create an undue hardship on the employer. Given the increase in disability discrimination claims, franchisees must be aware of their responsibilities under the Americans with Disabilities Act (“ADA”). In May 2016, the EEOC published a document to educate employers on utilizing leaves of absence as a reasonable accommodation under the ADA.

The six key points of reference include the following:

If an employer receives a leave request for reasons related to a disability and the leave falls within the employer’s existing paid leave policy, the employer should treat the employee requesting the leave the same as an employee who requests leave for reasons unrelated to a disability.

Where an employee has exhausted their paid leave or where the employer maintains no paid leave policy, an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if: 1) the employee requires it; and 2) it does not create an undue hardship for the employer.

When an employee requests leave or additional leave for a medical condition, the employer must treat the request as one for a reasonable accommodation under the ADA.

Employers must make exceptions to their policies, including leave policies, in order to provide a reasonable accommodation, unless the employer can show that doing so will cause an undue hardship.

If an employer requires an employee with a disability to have no medical restrictions prior to returning to work and the employee can perform the job with or without a reasonable accommodation, without causing an undue hardship, the employer has violated the ADA.

When assessing whether to grant leave as a reasonable accommodation, an employer may consider whether the leave would cause an undue hardship.

Additionally, the resource document provided further guidance on the importance of the interactive process. According to the EEOC, this process is “designed to enable the employer to obtain relevant information to determine the feasibility of providing leave as a reasonable accommodation without causing an undue burden.” Given the complexity of the ADA, franchisees should consult with a professional to ensure existing policies and procedures are compliant.

The EEOC’s report can be found on its website at: https://www.eeoc.gov/eeoc/publications/ada-leave.cfm