5 Questions About Leave as a Reasonable Accommodation Under the ADA

While the ADA has been in effect for nearly 25 years, many employers still have questions about what qualifies as a disability and what reasonable accommodations must be made for affected employees.  For instance, where does FMLA end and ADA begin?  This can confound even experienced HR professionals.  Fortunately we have the benefit of Paul Kramer’s expertise.  Paul is Director of Compliance at WorkForce Software and writes today to answer some of the commonest questions regarding ADA. — Maurice Gilbert

The workforce management function is fraught with challenges. Complying with rapidly changing legislation, which can vary on a local, state and national level, can be difficult enough; ensuring internal resources are properly trained on new processes and that all employees understand those changes further complicates an already challenging environment. One area that continues to cause much confusion is the Americans with Disabilities Act (ADA), which prohibits discrimination against individuals with disabilities and removes barriers so they can equally participate in employment opportunities.

Despite this legislation being in effect since 1990, many employers are still unclear regarding the definition of disability under the ADA, as conditions such as high blood pressure, depression or back ailments can be considered disabilities. Moreover, depending on the type of disability and other factors, a job may need to be restructured, modified or made part-time so those individuals can perform the essential functions of their jobs. Another solution under the ADA is to offer unpaid leave as a way to provide reasonable accommodation to employees with disabilities, even if they have exhausted other forms of leave such as those provided by the Family and Medical Leave Act (FMLA).

ADA and leave-related issues continue to be a top-of-mind concern for many employers, and new regulations put these policies under increased scrutiny. As such, it is crucial that managers understand the rules and regulations of the ADA, its impact on leave policies and how they and their teams can best comply with those laws. The following are some of the most common questions employers have about leave as a reasonable accommodation under ADA:

What is the difference between leave as an ADA reasonable accommodation and FMLA leave?

One of the most challenging aspects of leave is understanding where ADA and FMLA policies overlap – and where they don’t. While the ADA applies to organizations with at least 15 employees, the FMLA applies to companies with 50 employees or more. Therefore, many organizations must contend with both acts, which can cause great confusion about the various regulations impacting their operations.

One of the main differences is that employees are eligible for ADA-covered leave due to disability from their first day of work, while FMLA covers those who have been with the company for at least 12 months. Moreover, ADA is more expansive, covering additional situations that FMLA does not, meaning that if an employee exhausts his or her FMLA leave entitlement, they may be able to receive additional leave under ADA as a reasonable accommodation.

What are the conditions for ADA leave?

Under the ADA, the employer does not have to grant the specific accommodation requested by the employee. For instance, if there are multiple effective accommodations, the company has the right to offer a different type of accommodation. Though ADA is designed to protect the employee, it also aims to ensure the employer can provide accommodation with minimal impact to the business. For instance, if the leave requested by the employee would impose undue hardship on the employer, the employer can offer reasonable accommodation in the form of reduced working hours, reassign tasks or switch them temporarily to a different position if these accommodations would be effective.

What constitutes as an undue hardship?

Given the murkiness surrounding the topic of undue hardships under the ADA and lack of concrete rules, it is important to understand how those situations are qualified. When an employee requests leave as an accommodation for a disability, the individual’s absence can cause significant losses in productivity. As a result, the company may need to find a replacement to compensate for the worker’s absence, and those added costs may be considered an undue hardship on the employer. Alternately, while the employee is on leave, the company could be at risk of losing sales or it may have to defer projects until after the employee returns, which would likely impose undue hardship on the employer.

Whether an accommodation would be an undue hardship for an employer is impacted further by factors like the size and financial resources of the company; since larger companies are less affected by the absence of a single employee, they can grant more leave than a smaller organization. Ultimately, it is up to the employer to determine any potential hardship resulting from extended leave and grant accommodations accordingly.

How can employers avoid ADA violations?

With the complexity surrounding ADA, it is important that employers understand their obligations and potential sources of non-compliance risk. The use of inflexible leave policies has been a common source of ADA violations because they do not allow for leave as a reasonable accommodation for a disability. No-fault attendance policies and maximum leave rules have both gotten employers into trouble.

However, court decisions have not been uniform regarding the status of inflexible leave policies. In Hwang v. Kansas State University,¹ a court ruled that an inflexible leave policy granting up to six months of leave was “more than sufficient” to meet the requirement for reasonable accommodations. This ruling makes it appear that inflexible leave policies are permissible if they offer sufficient leave time and are consistently enforced, but other courts may see it differently, further complicating the issue.

The best way to avoid ADA violations is to ensure there is an open ADA interactive communication process between the employer and any employee with a disability when determining whether there is a reasonable accommodation that will allow them to perform the essential functions of their jobs. The company should also inform and remind employees of its ADA policies, and employees requiring leave accommodation due to disability should be able to openly discuss their needs with their supervisor. Through these dialogues, the company can understand the needs of its employees and work together to provide reasonable leave accommodation.

Can leave as an ADA reasonable accommodation be taken on an intermittent basis?

One of the biggest misperceptions about ADA leave is that employers will see their employees disappear for a few months. However, ADA leave isn’t always for a definite amount of time. Rather, the employee may request intermittent leave whereby their disability doesn’t prevent them from working on a daily basis, but instead impacts the frequency with which they work. For example, the employee may be only able to work for five hours a day or three days a week, or they may have to take off every Thursday for treatment during their period of disability. Here again, the interactive process is essential so employee and manager alike understand the requirements, the extent of the intermittent leave and how the company can continue to operate effectively while assisting the employee.

As the regulatory environment surrounding ADA leave increases, employers must ensure they understand the act, its impact and how they can maintain compliance. While the act may be complicated, it is a necessary aspect in fostering an inclusive environment for all employees. Unlike other disability accommodations, such as a new chair for someone with a bad back that help employees at that particular time, ADA leave is designed to help employees prepare to return to work in the future. As such, when equipped with a greater understanding of ADA leave, employers can work to provide the support their employees need to perform their job better.

NOTE: Federal, state and local regulations change on a fairly frequent basis. To ensure you’re current, please be sure to check with local council or other labor law resources.

Published by Conselium Executive Search, the global leader in compliance search.