How do you know the appropriate amount of leave to provide an employee as a reasonable accommodation under the Americans with Disabilities Act (ADA)?

You don’t.

The United States Equal Employment Opportunity Commission (EEOC) expects to issue guidance in late summer or early autumn on the topic of reasonable accommodations and leaves of absence under the ADA. On June 8, the EEOC held a public meeting on the subject, with additional written comments welcomed over the next 15 days. In the aftermath of two highly publicized EEOC consent decrees and an expanded number of individuals protected under the law as a result of the ADA Amendments Act (ADAAA) and its implementing regulations, employers can expect to encounter far more situations involving leave of absence as a reasonable accommodation.

Commissioners’ Observations on Leave as a Reasonable Accommodation Under the ADA

EEOC Chair Jacqueline Berrien opened the meeting by acknowledging the complexity of the leave issue under the ADA in view of the overlap of other laws, such as the federal Family and Medical Leave Act (FMLA), as well as state leave and workers’ compensation laws. Commissioner Stuart Ishimaru echoed that sentiment, and opined that many employers still do not appreciate that leave beyond any limit under FMLA or a finite leave policy may be a reasonable accommodation under the ADA, and that each instance will be intensely fact-driven. Commissioner Constance Barker observed that this becomes an even more difficult question for smaller employers, who may not even be subject to FMLA, but who are nevertheless subject to the ADA’s reasonable accommodation mandates. Commissioner Chai Feldblum similarly described situations in which the ADA was the main or only vehicle for many employees in need of leave due to their disability – either because of their part-time status or work tenure and failure to qualify for FMLA leave, or because their small employer is not covered by FMLA. Commissioner Feldblum also focused on the fact intensive analysis of the needs of each employer and employee in evaluating how much leave of absence constitutes a reasonable accommodation, and when concepts such as undue hardship enter the equation. Finally, Commissioner Victoria Lipnic, lauded by the Chair for her role in moving the meeting forward, described the inherent and “vexing” tension between an employer’s need to manage with predictability in a competitive economy, and the needs of the employee with a disability, whose needs do not always lend themselves to predictability. Commissioner Lipnic, too, emphasized that there are no blanket answers on how much extended leave is enough, and that each situation is highly fact-specific.

The consistent observation among the Commissioners was that inflexible leave policies, without exceptions for reasonable accommodations, raise strong ADA compliance concerns. Leave, in the view of the Commissioners, needs to be evaluated on a case-by-case basis.

Other Perspectives from the Commission

EEOC Assistant Legal Counsel Christopher Kuczynski, a principal author of past EEOC guidance pieces on the ADA, as well as the EEOC’s proposed regulations on the ADAAA, explained that unpaid leave (even leave without employer-paid benefit coverage) may need to be considered as a reasonable accommodation, so long as other leaves not governed by FMLA would be subject to the same terms. He also observed that the reasonable accommodation obligation does not necessarily foreclose no-fault attendance policies, though in appropriate circumstances, exceptions may need to be provided for leave granted as a reasonable accommodation – much like with FMLA leave. Kuczynski also compared leave under the ADA to leave under FMLA in the context of equal treatment for productivity bonuses, and opined that denying productivity bonuses to employees receiving leave as an accommodation when they otherwise would be entitled to such bonuses based on work they actually performed would result in unequal or retaliatory treatment and render the leave accommodation ineffective.

Kuczynski added that an employer may choose between effective accommodations, and may deny leave if another accommodation would enable the employee to keep working and still meet his or her disability-related needs. In a similar vein, employers may run afoul of the ADA if they require an employee to go on leave in lieu of an accommodation that would allow the individual to continue working and earning.

Finally, Kuczynski addressed the example of “creeping” leave requests, that often frustrate employers. He acknowledged the EEOC’s past guidance on performance and conduct standards, in which the EEOC said that “employers generally do not have to accommodate repeated instances of tardiness or absenteeism that occur with some frequency, over an extended period of time and often without notice.” The same guidance explains that “although employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration. Granting indefinite leave, like frequent and unpredictable requests for leave, can impose an undue hardship on an employer’s operations.” Still, he took the position that these principles could be reconciled with the emerging position that revising or expanding return to work projections would not necessarily render the leave request unreasonable. He said that a leave request is unreasonable if there is no realistic prospect of the employee returning to work; by contrast, leave that needs to be extended – even several times – may in some circumstances still be a reasonable accommodation.

EEOC Pattern or Practice Suits Challenging Finite Leave Policies

EEOC Regional Attorney John Hendrickson, from the Commission’s Chicago District Office, discussed two pattern and practice cases brought by his office on behalf of “classes” of employees. He highlighted two consent decree settlements involving Commission challenges to employer policies providing for automatic termination upon expiration of a set leave period. One matter settled for $6.2 million, and the other for $3.2 million, with additional, detailed policy and training mandates. The duration of each decree is three years. He identified the $6.2 million settlement as the largest stand-alone ADA case in EEOC history.

Perhaps more significantly, Hendrickson discussed lessons to be learned from the two settlements. According to Hendrickson, these lessons are:

1. An inflexible leave period, even if it provides a substantial amount of leave, is not sufficient.
2. Individualized analysis on leave accommodations is needed, even with a generous policy.
3. It is risky to separate leave administration from ADA accommodation administration.
4. It is critical for employers to maintain clear lines of communication with employees on leave, their managers, and the employees’ health care providers.
5. The Commission will continue to have a major role in litigation of leave cases.

The EEOC is investigating and litigating additional cases involving finite leave policies, and will announce additional settlements.  As Hendrickson noted, the pattern or practice cases require a substantial time commitment from the EEOC. Private plaintiffs’ counsel generally lack the size or means to litigate the larger leave cases. Hendrickson noted, for example, that hundreds of depositions were taken in the two cases leading to the settlements described above.

Hendrickson’s assessment only tells half the story. From an employer’s perspective, these cases are also costly to defend, as the “class” leave cases raise both “macro” issues on the legality of the employer’s particular policy, as well as other issues common to any EEOC pattern or practice case (such as time bars with respect to various claimants), but also “micro” issues surrounding each claimant identified by the EEOC in the lawsuit. On that micro level, employers may need to be prepared to take intensive discovery and address such issues as: (1) is the claimant protected under the ADA/ADAAA? (2) what are the essential functions of the claimant’s job? (3) was the claimant still a “qualified” individual with a disability, able to return to work and perform the essential functions of his or her job with or without a reasonable accommodation? (4) if attendance is an essential function of the job, did the individual reach the point at which his or her absences rendered him or her no longer “qualified”? (5) did the claimant ever request a reasonable accommodation of additional leave? (6) who abandoned or foreclosed the reasonable accommodations process? (7) was additional leave requested with a realistic, projected return to work, or, at the other extreme, did any request amount to a request for indefinite leave, with little or no possibility for returning to work? In this sense, ADA pattern or practice actions centering on leave devolve into a amalgamation of individual ADA cases as numerous as the number of listed claimants, albeit with a common theme.

Employee and Management Advocates Weigh In

Disability rights advocates Brian East and Claudia Center each conceded the complex nature of the issue in the absence of a bright-line rule, but agreed that the ADA requires a case by case analysis on both reasonableness and undue hardship. Center re-emphasized Hendrickson’s point on the difficulties that may occur when a leave administrator, particularly a third-party leave administrator, is isolated from those in charge of the reasonable accommodation process. She also recommended cross-referencing employers’ leave and accommodation policies, so that employees with disabilities are not left with the impression that there is a rigid limit on available leave.

Management attorneys Edward Isler and Ellen McLaughlin agreed with the general principle that leave may be a reasonable accommodation, but stressed that the EEOC’s apparent position that employers must pursue employees on leave to ask whether or not additional leave is required runs counter to the ADA. Rather, it is incumbent on the employee with the disability to request additional accommodations. Isler stressed the added burden this issue poses for small employers lacking the infrastructure for managing leaves. He added that smaller employers, or smaller units, are more likely to be adversely affected by an employee’s prolonged or unpredictable absences, and urged the Commission to consider the burden on other employees who may assume some of the tasks missed by a coworker on leave. Both agreed that temporary help seldom serves as a panacea for the adverse impact on productivity.

Overall Conclusions

In a new era under the ADA, in which many more individuals will receive protection under the law and a right to reasonable accommodations, employers must take notice that the EEOC is firmly focused on cases surrounding leave requests. Based on some of the observations expressed by EEOC commissioners and Commission attorneys, the focus goes beyond simply targeting leave policies with inflexible cut-offs. It also extends to instances in which the employer initially tries to provide leave as an accommodation and gives up prematurely, before the leave request becomes legally “unreasonable,” before the individual truly ceases to be “qualified” for the job, or before the employer can meet the difficult burden of proving an “undue hardship.” This subject will undoubtedly become an area of increasing uncertainty and, often, frustration for employers. It will engender additional “class” cases brought by the EEOC as well as private, single-plaintiff litigation. The solution for employers does not end with adding exceptions to leave of absence policies, though that represents a beginning.

For additional discussion on this subject, please see the Littler article Recent EEOC Lawsuits Highlight Importance of Adopting Comprehensive Procedures for Managing Employee Leaves, by Kerry Notestine and Kelley Edwards.

Peter Petesch is a Shareholder in Littler’s Washington, DC office and co-author, with Peter Susser, of the Bureau of National Affairs’ upcoming Second Edition of the treatise Disability Discrimination and the Workplace. He is also a member of Littler’s Leave of Absence and Disability Accommodation practice group.