The U.S. Equal Employment Opportunity Commission (EEOC) protects employees with disabilities by providing structures that prevent employers from utilizing any discriminating practices. The EEOC helps regulate the Title I of the Americans with Disability Act (ADA). The act mandates that employers with more than 15 employees create accommodations that support employees with disabilities. How can an employer make sure that his workplace offers the appropriate accommodations? To start, the employer must make sure that the leave policy is updated and allows for adequate leave time for disabled individuals, even if the policy is not present for other employees. The following guide will provide employers with preliminary information regarding employee leave policies and disability accommodations.
1. Equal Access to Leave Under an Employer’s Leave Policy Employees should have access to an employer’s existing leave policy and should not be discriminated to use the policy in any way. Let’s say you are an employer that offers 5 days of paid sick leave annually. You have not set conditions on how employees can or cannot use the time off. If you have an employee who has requested leave for two days due to depression related to workplace stress, what is your response?
Boss 1: I’ll need a doctor’s note. I don’t want other employees to begin taking off work due to “stress”. Paid sick days are for when you are actually sick.
Boss 2: Take the time off and recharge.
Boss 2 has handled the situation correctly. An employer cannot discriminate and ask for additional documentation based on an employee’s request for leave.
2. Granting Leave as a Reasonable Accommodation Granting time off can help employees with a disability return to work faster. While an employer does not have to provide paid time off, the employer is obligated to make allowances for leaves of absence. One stipulation? An employer may end the leave if it has created an undue hardship for the company. Let’s say you have a new employee who has been with the company for 2 months. In practice, you prohibit employees from taking time off until after their third month of working. Your new employee comes to you and requests 2 months off due to his disability. What do you do?
Boss 1: Unfortunately, you’ll need to wait another month before we can grant you time off. I’m sorry.
Boss 2: Of course. Let’s sit down with our HR Manager and map out a game plan for your return. We won’t be able to pay you for the time off, but we can hold your job until you return.
Boss 2 has the correct response. An employer cannot mandate that an employee waits for the existing policy to begin. Unless the employee’s leave would provide an undue hardship on the employer, the company should grant the employee the requested time-off.
3. Leave and the Interactive Process Generally Employees with a disability are encouraged to address their request for time-off with their employer. During this meeting, the employee will be required to provide the following information to their employer. This information will allow the employer to decide if the leave is feasible for the company. What information should you ask your employee?
- You’ll want to have a firm grasp on the reason for the leave. Is it surgery, training, therapy?
- How will the leave be structured? Will it be taken as a block of time or will it be intermittent?
- When will the time-off end?
It’s important to note that the employer must wait for the employee’s permission before obtaining information from the employee’s health care provider. If an employee does not wish to permit the information, the situation becomes more challenging for the employer.
4. Maximum Leave Policies Employers must make exceptions to their policies if an employee requires a longer amount of time-off than initially requested. As long as the extended leave does not cause undue hardship for the employer, he/she must accommodate the additional time off. Consider the following situation. You, as the employer, allow for 4 days of paid time-off each year. Your employee comes to you with a request. She is not covered by FMLA but requires intermittent time off due to her disability. What do you do?
Boss 1: You tell her that you are unable to help her out. Your policy allows for four days of leave a year.
Boss 2: You sit down and discuss the event in more detail. You ask her questions like, how often do you anticipate that you’ll need time off? How will it affect your work? After a discussion, you grant her the request and ask that she keeps you updated.
Boss 2 has the right idea. Even if an employee is not covered by FMLA, he/she is entitled to time off.
5. Return to Work and Reasonable Accommodation (Including Reassignment)
Employees who return to work after a leave of absence are granted accommodations to make the transition easier and safer. An employer is encouraged to keep a flexible mindset and keep the process fluid and interactive. In addition, an employer must work with the employee when he/she can no longer perform the duties associated with his/her job. In this case, the employer should look for vacant positions that align with the employee’s capabilities and skill set. Consider the following example. Your employee returns to work after taking 3-months off. In her previous position, she worked as a heath care aid. After her time-off, where she recuperated from an extensive surgery, her doctor has prescribed that she walks with a cane. The employee is no longer able to manage her day-to-day responsibilities. What is the proper way to handle the situation?
Boss 1: Let’s reassign you to another department where you can spend more time seated, working with customers and patients.
Boss 2: If you can’t perform your duties, it’s advisable you look for another position. Why don’t you apply for the opening in our other department? Good luck!
While Boss 2 seems optimistic, he’s in the wrong. Boss 2 should help facilitate the reassignment of the employee. She should not have to compete with other applicants.
6. Undue Hardship An employer may deny an employee a leave of absence if the employee’s time off hinders the company’s production or finances in a severe way. When determining what constitutes as an undue hardship, the employer should consider the following:
- The length of the leave required
- The frequency of the leave
- The flexibility in time-off
- Whether the intermittent time off is predictable
- How the leave will impact the workplace and the responsibilities of other employees
- How the leave will affect the employer’s operations
If you have further questions regarding the EEOC or the ADA and the effects on your workplace, reach out to Koppekin Consulting, Inc. I’ve spent decades helping employers navigate the best ways to support their employees and their companies.