What can an employer that is subject to the Americans with Disabilities Act (ADA) do when an employee has been injured on or off the job, has used all of his or her paid leave time, and has exhausted the entire 12 weeks provided by FMLA? At that point, employers need to be aware that they must engage the employee in an "interactive process” to determine whether or not unpaid leave will be needed as an accommodation.
According to the Equal Employment Opportunity Commission (EEOC), these discussions should focus on:
- The specific reason(s) the employee needs leave (e.g., surgery and recuperation, adjustment to a new medication regimen, training of a new service animal, doctor visits or physical therapy);
- Whether the leave will be a block of time (e.g., three weeks or four months), or intermittent (for example, one day per week, six days per month, occasional days throughout the year); and
- When the need for leave will end.
Once all of the information has been gathered the employer will consider the information and whether or not the leave would cause an undue hardship on the employer. If the circumstance will be an undue hardship on the employer, the employer does not have to grant the leave. The EEOC states that determination of whether providing leave would result in undue hardship may involve consideration of the following:
- The amount and/or length of leave required (e.g., four months, three days per week, six days per month, four to six days of intermittent leave for one month, four to six days of intermittent leave each month for six months, leave required indefinitely, or leave without a specified or estimated end date);
- The frequency of the leave (e.g., three days per week, three days per month, every Thursday);
- Whether there is any flexibility with respect to the days on which leave is taken (e.g., whether treatment normally provided on a Monday could be provided on some other day during the week);
- Whether the need for intermittent leave on specific dates is predictable or unpredictable (e.g., the specific day that an employee needs leave because of a seizure is unpredictable; intermittent leave to obtain chemotherapy is predictable);
- The impact of the employee's absence on coworkers and whether specific job duties are being performed in an appropriate and timely manner (e.g., only one coworker has the skills of the employee on leave and the job duties involved must be performed under a contract with a specific completion date, making it impossible for the employer to provide the amount of leave requested without over-burdening the coworker, failing to fulfill the contract, or incurring significant overtime costs); and
- The impact on the employer's operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer.
Employers also need to be aware that although they are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, they may have to provide unpaid leave beyond this amount as a reasonable accommodation to employees who require it because of a disability.
For more information on this subject read the EEOC’s guidance on granting leave as an accommodation or contact Andrea Shindlebower Main or Courtney Risk Straw in KLC’s Municipal Law and Training Department.