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.