Employers must consider providing unpaid leave and giving priority to disabled employees who want to be re-assigned under new guidance from the EEOC last month. In the new EEOC Guidance available here “Employer-Provided Leave and the Americans with Disabilities Act”, the EEOC states that if an employee requests it, an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation, so long as providing the unpaid leave does not create an undue hardship for the employer. The EEOC emphasized that this is the case even when:

  • The employer does not offer leave as an employee benefit;
  • The employee is not eligible for leave under the employer’s policy; or
  • The employee has exhausted the leave the employer provides as a benefit (including leave exhausted under a workers’ compensation program, the FMLA, or similar state or local laws).

For example, although employers are allowed to enact leave policies that establish maximum amounts of leave the employer will provide or permit (such as policies limiting unpaid leave to 12 weeks per year or policies limiting paid leave to 5 sick days per year), under the ADA, employers may have to grant leave beyond this amount as a reasonable accommodation (unless the employer can show undue hardship). Thus, employers are reminded that compliance with the FMLA or applicable state or city sick leave laws does not necessarily meet an employer’s obligations under the ADA.

In some situations, such as where a disability prevents an employee from performing one or more essential functions of his or her current job, the employee (or employee’s physician) may request the employee be assigned to a new job as a reasonable accommodation. The EEOC takes the position that if reassignment is requested, an employer must place the employee in a vacant position for which he is qualified, without requiring the employee to compete with other applicants for the open position. (Employers should note that there is a current split among federal appellate circuit courts on this issue.)  The EEOC notes, however, that reassignment does not include promotion and that an exception exists in the case of uniformly applied seniority systems.