Employee Leave: The Americans with Disabilities Act

By Leslie Lasher

In this installment of our blog series relating to employee leave, I will be reviewing the Americans with Disabilities Act of 1990 (ADA) (and its later Amendments Act of 2008), a far-reaching set of federal statutes that affects many aspects of life, from transportation to public accommodation, communications, and governmental activities.

Regarding the workplace, the ADA prohibits discrimination against applicants and employees who are, in the words of the law, “qualified individuals with a disability.”  The ADA applies to employers with 15 or more employees and has a broad definition of “disability.” The oversimplified basics of the law are that, in order to be “qualified” the person should be able to perform the position with or without a “reasonable accommodation.” The ADA requires the employer to provide a “reasonable accommodation” if the employee needs it in order to perform the essential functions of the job. Employees may need or request many different types of accommodations from employers, ranging from accessibility and specific types of office furniture to devices that aid in performing a job (for example, a hearing-impaired receptionist may ask for a specific type of telephone headset). For the purpose of this series, we will look at the ADA from the perspective of a request for leave as a type of accommodation.

For starters, it is undisputed that leave is a type of “reasonable accommodation” under the ADA. For example, if a disabled employee needed time off to adapt to a new medication, the employer should consider whether it can accommodate the request for leave.

The first important takeaway is that the ADA may cover situations when other laws, like the Family and Medical Leave Act (FMLA), do not apply.   Specifically, an employee does not have to work for an employer for one year in order to be entitled to leave under the ADA.    Because the ADA covers scenarios where the FMLA may not apply, it is important for employers to view any request for leave as a “triggering event” under the ADA. Recognizing requests for this type of accommodation can sometimes be difficult. There are no magic words that employees must say. For example, employees do not have to say the words “accommodation” or “disability.” You may hear words like, “help” or “assistance” or “I need to be out of work,” or something else entirely. Also, it is important to note that an employee who requests to stay out longer than their 12-week entitlement under FLMA may well be asking for leave as an accommodation under the ADA.

The second important point is that the ADA does not quantify the amount of leave that is considered “reasonable.” What we do know is that inflexible, maximum leave policies violate the ADA, such as hard caps on the number of weeks/months and employee can be on leave. In other words, an employer should not state in their handbook that “Employees who cannot return to work after four (4) months will be terminated.” Employers must instead be flexible, assessing each accommodation request on a case-by-case basis. On the other hand, we also know that employers are not expected to accommodate indefinite periods of leave under the ADA. Similarly, it is not often “reasonable” to accommodation someone who is not expected to return to work at the end of the leave period.  Because one of the main purposes of a reasonable accommodation is to allow the person to be able to perform the essential functions of the position, an employee should be able to show that the leave would enable the employee to return to work at some point.

Lastly, it is important to note that a person returning from leave under the ADA must receive his or her original position unless holding the position would pose an undue hardship on the employer. Thus, a key question to consider in whether the leave request is “reasonable” is whether the employer can hold the person’s original job (or otherwise offer the position back to them) upon their return to work. While the law does not carry the same requirement as the FMLA in regards to the continuation of benefits, if the employer allows employees to keep their benefits while on other types of leave (FMLA, STD, Maternity, etc.), the employer should offer the same benefit to those on leave who are protected by the ADA.

The ADA is not the clearest, nor easiest law to follow.  What is clear, however, is that after an employer is placed on notice of a disability or a request for an accommodation, the employer should initiate an “interactive process” (i.e. a discussion) with the employee to determine what type of accommodation can be reasonably made.  Always keep the employee’s privacy as a top priority while working through the process, and document any discussions or decisions that are made, keeping in mind the other leave laws that may also apply.

For more information on leave policies and counsel regarding the nuances of applicable laws like the Americans with Disabilities Act, please contact me at the Forrest Firm for a consultation. We can review current situations as well as take a long-term, more proactive view that will help you navigate these waters as you facilitate a fair workplace.

I will be back soon to talk about the implications for employee leave under North Carolina’s workers’ compensation laws.