Under the Americans with Disabilities Act, employers are required to engage in the interactive process with the goal of providing disabled employees with a reasonable accommodation that will allow them to continue performing their essential job functions. In May 2016, the Equal Employment Opportunity Commission issued new guidance specifically addressing employer-provided leave as a possible accommodation. In an interview with The Oklahoman, labor and employment attorney Paige Hoster Good explained that the new guidance does not create any new policy or propose new law; rather, it consolidates current guidance on the ADA, employer leave policies, reasonable accommodations, and other related topics.
“It appears the motivation behind this stems from the overall rise in disability-related charges of discrimination filed with the EEOC, which increased over 6 percent from fiscal year 2014 to 2015,” said Good. “Moreover, recent charges received by the EEOC indicate employers may not know they should consider modification of leave policies as a reasonable accommodation of an employee’s disability. A disabled employee’s request for leave should be treated as a request for a reasonable accommodation, and the employer should therefore engage in the interactive process to determine if the FMLA, sick leave, or some other unpaid leave is feasible.”
She added that employers are not expected to grant indefinite leaves of absence, nor is leave always a reasonable accommodation for some job positions.
“An accommodation that allows a leave of absence when physical attendance is essential to the job may not be considered reasonable if it has an impact on the employer’s operations or the ability of other employees to perform their assigned duties,” said Good.