We often discuss unpaid leaves of absence as a reasonable accommodation when employees have exhausted all other forms of leave but are still unable to return to work. Typically reasonable accommodations under the Americans with Disabilities are viewed as something that allows an employee to return to their full duties either with or without a reasonable accommodation. But the EEOC has provided guidance that a reasonable accommodation may also include an unpaid leave of absence if that leave of absence may give the employee the time necessary to recover from the disabling condition and return to work. Indefinite unpaid leaves of absence are not required, so normally requests for unpaid leaves of absence as a reasonable accommodation are accompanied by a definitive return to work date from the employee (employee’s treating physician).
However, what about situations where definitive treatment periods are less clear? For instance, what about employees who are undergoing cancer treatments? The EEOC seems to take a different view of these situations.
Cancer comes in many different forms. There are as many different treatments for cancer as there are forms of the disease. In addition, treatments may vary from patient to patient even for the same form of the disease. For one cancer patient, treatment may involve surgery, chemotherapy and radiation; for another patient, only radiation. Because there are so many different treatments for cancer and a patient’s response to treatment may dictate the next steps in treating the disease, it is often difficult for doctors to determine the likely duration and outcome of the treatments. The EEOC takes the position that an employer cannot simply deny a leave request because the employee is unable to provide a fixed return to work date due to ongoing cancer treatments and that the granting of such a leave request may be a reasonable accommodation under the law.
Employees undergoing cancer treatments may only be able to provide an approximate return to work date. That date may be postponed, but if it is, the employee should remain in contact with the employer and let the employer know how he or she is progressing. Further, according to the EEOC, the employer has the right to request periodic updates from the employee regarding his or her condition as well as a possible return date. It should also be noted that requests for unpaid leave are not automatically granted because an employee is undergoing cancer treatments. If the request constitutes an undue hardship to the employer, it still may be denied. Further, if the leave request is granted but the employee’s return is delayed by unforeseeable circumstances, the employer may reevaluate granting further leave if such further leave would result in an undue hardship to the employer.
The EEOC provides further guidance on other issues related to cancer and the Americans with Disabilities Act in its online resource “Questions & Answers about Cancer in the Workplace and the Americans with Disabilities Act (ADA).” If you have additional questions about cancer in the workplace or ADA compliance issue in general, please do not hesitate to contact Ancel Glink.
