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The Wagner Law Group

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 22 attorneys engaged exclusively in employee benefits, estate planning and employment law. Six of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.





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The Wagner Law Group


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May 26, 2016


 Health and Welfare Law Alert




EEOC Issues New Regulations on

Employer-Provided Leave





The U.S. Equal Employment Opportunity Commission ("EEOC") has issued guidance on the circumstances when employers must provide unpaid leave to disabled employees as a "reasonable accommodation" under the Americans with Disabilities Act ("ADA").


Background. Title I of the ADA prohibits employers from discriminating against employees on the basis of disability and requires that employers provide reasonable accommodations to disabled employees when doing so does not cause an "undue hardship" for the employer. A reasonable accommodation is generally any change in the way things are customarily done that enables employees with disabilities to work and enjoy equal employment opportunities.


EEOC has recently experienced a rise in complaints regarding employers' management of disability-related leave requests. In response, EEOC has published new guidance to notify employers of its position on the ADA's disability leave requirements. (Note: The new guidance does not change any existing EEOC policy or create new law.)



New EEOC Guidance. Highlights from the EEOC's new disability leave guidance are as follows:


Leave Under an Employer's Paid Leave Policy. The guidance explains that an employer must treat all employee requests for leave equally, whether disability-related or otherwise. For example, if an employer places no conditions on its employees' use of paid leave, it cannot require a disabled employee to take additional steps to obtain paid leave.


Unpaid Leave as a Reasonable Accommodation. The guidance clarifies that when an employer does not have a paid leave policy or an employee has used all available paid leave time, the employer must consider providing unpaid leave to disabled employees as a reasonable accommodation. Employers need provide such unpaid leave only when an employee's disability requires it and when granting such a leave does not create an undue hardship for the employer.


Maximum Leave Policies. Employers may implement leave policies that limit the amount of leave employees can request. However, employers may be required to make an exception (i.e., a reasonable accommodation) to such a limit for disabled employees where doing so does not create an undue hardship.


Indefinite Request for Leave. A disabled employee's request for an indefinite amount of leave is an undue hardship for an employer. As such, employers are not required to grant indefinite leave requests as a reasonable accommodation.



Return to Work Policies. Employees on disability leave have the right to request reasonable accommodations to facilitate their return to work. If the employee's reassignment to a different position is required as a reasonable accommodation, an employer must place an employee in a vacant position (for which the employee is qualified) without competition from other applicants.


100% Healed Policies. The guidance confirms that "100% healed" policies (i.e., an employer's policy requiring that an employee on disability leave may only return to work with no medical restrictions) violate the ADA.


Undue Hardship. The guidance provides several factors for employers to consider when assessing whether an undue hardship is created by making a reasonable accommodation, including:


  • the amount and/or length of leave required;
  • the frequency of the leave;
  • whether there is any flexibility for the days on which leave is taken;
  • whether the need for intermittent leave is predictable;
  • the impact of the employee's absence on co-workers; and
  • the impact on the employer's operations and its ability to serve customers/clients.


Takeaway for Employers. While the EEOC's new guidance on employer-leave policies does not create or change applicable law, it does provide direction to employers on how leave policies should be structured to comply with the ADA's reasonable accommodation requirements. To ensure leave policies satisfy applicable ADA requirements, employers should:




  • consult with counsel to ensure their leave policies are compliant with the new guidance; 
  • treat employees' medically-related leave requests as a request for reasonable accommodation and engage such employees in the ADA's interactive process; and 
  • modify any automatic termination provisions to inform employees nearing the end of their maximum leave that they may request additional unpaid leave as a reasonable accommodation for a disability.




Employers should note that leave requirements under the ADA operate independently from leave under the Family and Medical Leave Act.




The EEOC policy on employer-provided leave can be found at: https://www.eeoc.gov/eeoc/publications/ada-leave.cfm








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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.