The Americans with Disabilities Act (ADA) requires employees to provide reasonable accommodations to qualified employees with disabilities. These accommodations can take various forms, including structural modifications to the workplace and scheduling adjustments. The U.S. Equal Employment Opportunity Commission (EEOC) also considers time off from work to be a reasonable accommodation in many situations.

Time Off Under the ADA

Let’s start with a relatively unsurprising conclusion under disabilities discrimination laws. Employers cannot provide employees with disabilities less time off than other similarly situated employees. For example, an employer that allows employees to take vacation time for any purpose cannot exclude an employee with a disability from using vacation time to recuperate from a medical procedure.

Few employers would object to that principle. But many do not consider the possibility that an employee with a disability may be entitled to take more time off than company policies normally allow.

Leave as a Reasonable Accommodation

The EEOC’s ADA regulations define reasonable accommodation to mean modifications or adjustments:

• to a job application process that enable a qualified applicant with a disability to be considered for the position the applicant desires;
• to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or
• that enable an employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by the employer’s other similarly situated employees without disabilities.

EEOC guidance states that: “The 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.”

As with other forms of accommodations, additional leave or time off must be reasonable and can be denied if it imposes an undue hardship. Often these issues raise questions of how much leave is reasonable?

The EEOC will not answer this question directly. There is no bright line amount of time off that an employee with a disability must receive under the ADA. Instead, the EEOC has historically taken the position that employers must evaluate each situation individually.

Factors that play into the analysis of reasonableness include

• the reason(s) the employee needs leave;
• whether the leave will be consecutive (all at once) or intermittent (periodic); and
• when the need for leave will end.

Additional factors toward whether time off will impose an undue hardship include

• size and skills of the remaining workforce;
• ability to temporarily replace the employee; and
• whether the time off is foreseeable or unpredictable.

Maximum Leave Policies

Trying to avoid the complicated analysis suggested above, some employers seek to enforce a maximum leave policy. Most commonly, these are for either 6 or 12 months. But some employers use longer or shorter periods.

Under these policies, employers would like to say that no matter the reason for the extended leave, any employee out longer than X months will be removed from the payroll, etc. The EEOC consistently rejects these policies. Sometimes courts allow them, however.

Still, even the risk of EEOC investigation makes it dangerous to try to apply a strict maximum leave policy. Accordingly, it is usually better to build some discretion into the policy. For example, while referencing a general maximum time period, the policy would advise employees that a brief extension of the leave may be available if medically necessary. You could then determine what a “brief extension” means on a case-by-case basis, providing the flexibility the EEOC seeks.

Don’t Let the FMLA Fool You

The federal Family and Medical Leave Act (FMLA) requires employers with 50+ employees to allow eligible employees to take up to 12 weeks off. Qualifying circumstances for FMLA leave include the employee’s own serious health condition.

Employees with serious health conditions often also qualify as employees with a disability under the ADA. Thus, they may be eligible for leave as a reasonable accommodation. And more than 12 weeks off might be reasonable under the circumstances.

Accordingly, employers should almost never automatically terminate an employee’s employment merely because they don’t return to work immediately after 12 weeks of FMLA leave. (In addition to the medical leave scenario, other forms of FMLA leave may also touch on other discrimination protections, such as sex/pregnancy discrimination. Plus, retaliation for taking FMLA leave is itself unlawful.)

Time Off as an Accommodation Can Be Unpaid

Allowing an employee time off as a reasonable accommodation does not mean employers must provide paid leave. As mentioned, if the employee is eligible to use vacation or other paid leave for a portion of the time off, then they should not be denied the opportunity to do so based on their disability. But, if they have exhausted any available paid time (or have none in the first place), then, like the FMLA, the ADA does not entitle anyone to receive paid leave.

Review Your Leave Policies

It is difficult to propose one-size-fits-all advice on this issue, but all employers should seek to avoid facially unlawful leave policies. At a minimum, this includes any wording that directly penalizes qualified employees with disabilities. But most employers should go further and build in flexibility to account for reasonable accommodations, as suggested above. This includes, by the way, so-called “no-fault” attendance policies. (But that will have to be a topic for another day!)

To get more helpful updates and reminders on employment law topics, sign up for my email newsletter. It doesn’t cost anything, and, who knows, it might save your organization a lot of time and money!