How to Handle an Employee's Request for Leave as an Accommodation
- Step 1: Employers should have in place an ADA and FMLA policy. Both policies should be included in the employee handbook and properly communicated to all employees. Inflexible leave policies should be avoided.
- Step 2: When an employee is out on a protected leave of absence, such as FMLA leave, an employer should communicate with the employee.
- Step 3: If an employee is not eligible for FMLA leave or has exhausted his or her FMLA leave entitlement, and requests leave as an accommodation, an employer should decide whether the employee's leave request puts the ADA is "in the picture."
- Step 4: If the ADA is "in the picture," decide whether the employee has an ADA-protected disability.
- Step 5: If the employee is considered disabled under the ADA, determine if the employee is entitled to the requested leave or leave extension as a reasonable accommodation.
- Step 6: If the decision is to grant the employee leave as an ADA accommodation, decide whether it would be an undue hardship not to permanently fill the position.
- Step 7: If the decision is to grant the employee leave as an ADA accommodation, decide whether the employee will be provided a continuation of group health care coverage
- Step 8: After the leave is granted, require periodic updates and address return-to-work issues.
- Step 9: Document, Document, Document
- Additional Resources
Author: Barton A. Bixenstine, Vorys, Sater, Seymour and Pease LLP
Employers should be aware, the EEOC has taken the position that any policies which call for the automatic termination of an employee after the employee has been absent for a certain period of time does not properly meet the employer's obligation to engage in the Americans with Disabilities Act's (ADA's) interactive process to determine if a reasonable accommodation is necessary. At a bare minimum, an employer's attendance policies (and related policies/documents) must factor in a case-by-case analysis of the employee's situation and the employer's obligation to reasonably accommodate. It is the EEOC's position that the ADA may entitle an employee with a disability to take leave as a reasonable accommodation, even when the employee is not eligible for FMLA leave or has exhausted his or her FMLA leave entitlement.
The below steps will help an employer handle an employee's request for leave as an accommodation. For purposes of these steps, it is assumed that the individual does not qualify for FMLA-protected leave because, if he or she had an FMLA entitlement, then the leave requested would be granted on that basis, without regard to any questions of accommodation.