EEOC Reiterates that Leave of Absence can be a Reasonable Accommodation

The intersection of FMLA, ADA, Worker’s Compensation and other employer granted benefits sometimes result in a confusing morass of issues for employers dealing with a worker with a serious injury or illness. Determining whether or how much leave is appropriate can be a frustrating guessing game that we regularly address these issues on this site. 

Earlier this week, the EEOC itself took a stab at the specific subject and issued guidelines on when a leave of absence is a reasonable accommodation. In this publication it focuses specifically on its position that a request for a leave of absence for medical reasons should be treated generally as a request for a reasonable accommodation, triggering the obligation of the employer to engage in the interactive process mandated by the ADA. 

Of course whether a leave of absence is, in fact, a reasonable accommodation can only be decided on a case by case basis, but the EEOC opined on the following scenarios:

1. A leave of absence that exceeds what is permitted under the Family and Medical Leave Act (FMLA), by itself, is not sufficient to show undue hardship.
2. Indefinite leave, meaning that an employee or her doctor cannot say whether or when she will be able to return to work, does constitute an undue hardship.
3. If reassignment is necessary because undue hardship precludes providing an accommodation with a current job, the employer must place the employee in a vacant position for which he is qualified without requiring the employee to compete with others unless another employee is entitled to the position under a uniformly applied seniority system.

It is more important than ever for employers, who are faced with a request for leave of absence as an ADA accommodation, to carefully document the impact on the workplace resulting, or likely to result, from an employee’s absence. Examples of evidence of undue hardship that can be directly tied to employee absence include the following:

1. Loss of productivity that can be evidenced empirically, including lower production of goods or a drop in service related to employee absence and not resulting from cyclical or other drop in demand.
2. Increased overtime of other employees who do the same work as the absent employee or of others who are covering the work of the absent worker.
3. Incomplete or delayed projects due to the absence of the worker.
4. Increase in cost of outsourcing or temporary workers that exceeds the compensation of the absent employee.
5. Diminished morale among co-workers. This can be measured in part by the increased use of time off by co-workers or complaints of “burn out”.
6. A drop in profits or revenue that can be directly related to a diminished workforce or the worker’s absence.

It’s often a delicate balance between a reasonable accommodation and an undue hardship. Careful monitoring of workflow and the impact of an employee leave can not only assist the employer in achieving that correct balance, but will serve as good evidence in the employer’s favor should the employee make a later claim.