Compliance with the Americans with Disabilities Act has always been a moving target for employers. The Americans with Disabilities Act Amendments Act (ADAAA), and the regulations recently issued under that Act, only made matters worse. As we have described in past issues, the ADAAA shifted an employer’s focus from trying to determine if an employee is a qualified individual with a disability, to working with the employee to find a reasonable accommodation for a condition which the ADAAA defines as a disability. Unfortunately, the ADAAA and its regulations provide little guidance on what constitutes a reasonable accommodation. This creates an especially difficult problem when an employee requests leave as a reasonable accommodation.

Most employers recognize that unpaid leave for medical treatment, recovery, or training to use an adaptive device is an important accommodation under the ADA. Many employers, however, have a “no fault” leave policy which requires termination of an employee after a specified period of time away from the job. The EEOC has long taken the position that these types of policies must be modified as a reasonable accommodation if an employee with a disability needs additional leave. And, they have had some success with this position in recent litigation over inflexible policies, entering into multi-million dollar consent decrees with Sears and SuperValue.

The real challenge lies with trying to figure out what limitations an employer may place on the leave it offers, and the extent of the duty to hold an employee’s job open during the leave. Earlier this summer, the EEOC held a meeting on this topic. They invited experts representing employees and employers, as well as their own in-house experts. Although there were few agreements on what constituted a reasonable extended leave, all agreed that the EEOC must provide more guidance on this issue, including examples of times when additional leave will be deemed necessary and when it will not. When the guidance is published, we’ll let you know.

Until then, carefully consider any termination as a matter of policy of an employee on medical leave.

By Rebecca M. Fowler, rfowler@dsda.com