On May 9, 2016, the EEOC published new guidance entitled Employer-Provided Leave and the Americans with Disabilities Act. The guidance is intended to help educate employers about workplace leave as a reasonable accommodation under the ADA.

The EEOC guidance addresses employer policies that put a cap on the maximum amount of leave allowed. Employers may need to grant leave beyond the amount of leave allowed under the policy as a reasonable accommodation to employees with a covered disability, unless doing so would create an undue hardship. In fact, the EEOC recently announced a multi-million dollar settlement with Lowe’s for automatically terminating employees whose medical leaves of absence exceeded the company’s maximum leave policy.

Practically, this means that employers should initiate the interactive process when handling requests for additional leave beyond the maximum term under the employer’s program. The employer should obtain medical documentation specifying the amount of additional leave needed, the reasons for additional leave, and an estimated return to work date to evaluate the request and to engage in an undue hardship analysis. Similarly, employers should initiate the interactive process when an employee with a disability has exhausted (or is not eligible for) leave under the Family and Medical Leave Act (“FMLA”). The EEOC has also advised employers who use form letters to communicate with employees who are nearing the end of their leave under the employer’s policy to modify those letters to let employees know that if they need additional unpaid leave as a reasonable accommodation, they must request it as soon as possible so that the employer can evaluate the request and engage in an undue hardship analysis.

When determining whether a request for leave would cause an undue hardship, the EEOC encourages employers to consider the following factors:

• the total amount and/or length of leave required;
• the frequency of the leave;
• whether there is any flexibility with respect to the days on which leave is taken;
• whether the need for intermittent leave is predictable or unpredictable;
• the impact of the employee's absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner; and
• the impact on the employer's operations and its ability to serve customers/clients appropriately and in a timely manner.

The EEOC guidance also addresses “100%d99f7e4a} healed” policies where the employer requires a “full release” (or no medical restrictions) before returning to work. Such policies are unlawful. Instead, employers must individually assess an employee’s ability to perform the essential functions of the position, with or without a reasonable accommodation.

The EEOC’s guidance is available here. If you have any questions, please contact us.