The Wagner Law Group
Wagner Law Group, A Professional Corporation, is a nationally
recognized ERISA & employee benefits, estate planning,
employment, labor & human resources practice.
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.
Wagner Law Group
Fax: (561) 293-3591
7108 Fairway Drive
Palm Beach Gardens, FL 33418
East Kennedy Boulevard
Tampa, FL 33602
Francisco, CA 94104
100 South 4th Street, Suite 550
St. Louis, MO 63102
May 26, 2016
Health and Welfare Law
EEOC Issues New Regulations on
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.
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.)
EEOC Guidance. Highlights
from the EEOC's new disability leave guidance are as follows:
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.
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
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.
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.
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.
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.
Hardship. The guidance provides
several factors for employers to consider when assessing whether an
undue hardship is created by making a reasonable accommodation,
- the amount
and/or length of leave required;
frequency of the leave;
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
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
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
This Newsletter is protected by copyright. Material
appearing herein may be reproduced with appropriate credit.
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