EEOC’s Guidance on Leave as a Reasonable Accommodation

On May 9, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued a resource document in an effort to address continued EEOC “charges indicating that some employers may be unaware of Commission positions about leave under the Americans with Disabilities Act (“ADA”).” (EEOC, Employer-Provided Leave and the Americans with Disabilities Act, May 9, 2016, available at The EEOC enforces Title I of the ADA, which became law in 1990, and prohibits discrimination against individuals with disabilities in employment, housing, public accommodations, health services education and access to public services. The resource document clarifies existing law regarding an employer’s obligation to offer reasonable accommodation and engage in the good faith interactive process with an employee who has a disability.

Leave of Absence as Reasonable Accommodation

The ADA requires, generally, that covered employers (employers with 15 or more employees) provide reasonable accommodations to applicants and employees with disabilities. A reasonable accommodation is, “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” (29 Code Fed. Regs. § 1630.2.) That can include an employer’s provision of leave when needed for a disability, regardless of whether employer policy would otherwise so permit.

Many employers offer paid and unpaid leave as a benefit of employment. Some employers have general paid time off policies, under which employees may take leave for any reason they desire. Other employers maintain discrete policies providing a certain number of leave days designated as annual leave, sick leave, or “personal days.” If an employer receives a request for leave because of an employee’s disability and the leave falls within the employer’s established paid time off policies, it must treat the employee requesting the leave in the same manner as an employee who requests leave for reasons unrelated to disability. For instance, if a company’s leave policy does not require documentation, it cannot discriminatorily request documentation of employees who wish to use the leave for disability-related reasons. Similarly, an employer who permits employees to use paid annual leave for any purpose and without explanation, cannot require an employee seeking to use paid annual leave for disability-related purposes to use sick leave instead.

Moreover, employers may be required to make modifications to existing leave policies to enable employees with disabilities to work. This is the case even if the employer does not offer leave; the employee is not eligible for leave; or the employee has exhausted all available leave. Indeed, even those employers who have nondiscriminatory leave policies that establish the maximum amount of leave an employer will provide to any employee may be required to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that it doing so will cause an undue hardship. The EEOC resource document makes unequivocally clear: “[t]he purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work. Leave as a reasonable accommodation is consistent with this purpose when it enables an employee to return to work following the period of leave.”


Employers are also required to consider job reinstatement or reassignment as reasonable accommodation. Reinstatement refers to the placement of an employee back in his or her work position following an extended period of illness or disability. If an employer determines that holding open a disabled employee’s job while that employee is on leave will cause undue hardship, the employer may instead reinstate the employee in a different position for which he is qualified. In some cases, the requested reasonable accommodation will be reassignment to a new job that better suits the employee in light of the employee’s disability.

It is in violation of ADA for an employer to institute a “100% Healed Policy” in which the employer requires an employee with a disability to return to work without any medical restrictions. An employer may not claim that an employee with medical restrictions poses safety a risk unless he or she can show a “direct threat” of “substantial risk of substantial harm to self or others.” In assessing whether a medical restriction poses a direct threat, employers should look to whether the restriction affects the employee’s “essential and marginal functions.”

Undue Hardship

Despite the above, an employer must only grant a reasonable accommodation, including in the form of paid or unpaid leave, to an employee with a disability to the extent that it does not create an undue hardship for the employer. If an employer determines that providing the requested accommodation would impose an undue hardship on its operations and finances, it is not required to grant the leave. The following factors are generally considered in assessing whether providing leave would result in undue hardship to the employer:

(1) The amount and/or length of leave required
(2) The frequency of the leave during the work week
(3) Whether there is any flexibility with respect to the days on which leave is taken
(4) Whether the need for intermittent leave on specific dates is predictable or unpredictable
(5) The impact of the employee's absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner
(6) The impact on the employer's operations and its ability to serve customers and clients appropriately and in a timely manner

While indefinite leave generally constitutes an undue hardship, the EEOC notes that undue hardship is not necessarily imposed in a situation where an employee taking time off due to disability provides the employer with approximate return dates that are subject to modification in light of changing circumstances. Employers should evaluate such situations on a case-by-case basis. The employer may consider leave that has already been taken in assessing the impact of a requested accommodation leave. For instance, where an employee has used up the amount of leave permitted by the Family Medical Leave Act, Worker’s Compensation and the company’s leave policy, the impact of any additional time off will be assessed by looking at the total amount of time taken off. Bear in mind that employers are not, under any circumstances, required to provide paid leave beyond what it provides as part of its paid leave policy.

Employers should carefully document any analysis undertaken in consideration of whether providing leave would result in undue hardship. Moreover, employers who use “form letters” to inform employees of remaining leave balance or to instruct employees to return to work by a certain date or face termination should make clear that leave as an accommodation for disability may be permitted, provided that it does not produce an undue hardship.

Communication: The Interactive Process

The “interactive process” is a procedure designed to enable the employer to assess the feasibility of providing leave as a reasonable accommodation without causing undue hardship. Employers may use this process to request additional information to confirm that a condition experienced by an employee qualifies as a disability under ADA. Most of the focus will on (1) the specific reason the specific reason the employee needs leave; (2) whether the leave will be a block of time or intermittent; and (3) when the need for leave will end. During this preliminary phase, an employer may obtain information regarding the need for leave from the employee’s health care provider, provided there is employee consent. The interactive process may continue throughout the leave, up until employee’s return to work if the granted leave does not have a fixed return date or if the leave is extended. The employer may not request periodic updates where the return date is fixed. Importantly, employers who use third-party administrators or human resource department personnel to handle leave requests must ensure that a procedure is in place to ensure compliance with the interactive process.