Leave Law Tip of the Month: When is Offering Leave Required as An ADA Accommodation?
By Lisa A. Krupicka
In talking with employers over the years, I have noticed that some employers (and their employees) lack a fundamental understanding of when it is appropriate to offer leave as a reasonable accommodation under the ADA.
The issue usually comes up in a situation in which an employee has exhausted all sick leave and vacation as well as FMLA leave but still is unable to return to work (this was the subject of a previous column). However, the issue of offering leave also comes up in situations in which an employee has been incurring absences or experiencing performance issues on a frequent but unpredictable basis, and has informed her employer that the absences or performance issues are related to a disability.
Your first thought, of course, is to offer the employee FMLA leave. This would be correct if the company employs at least 50 employees within a 75-mile radius, the employee qualifies for FMLA leave and hasn’t already exhausted her leave entitlement.
When confronted with a situation in which an employee is not entitled to FMLA leave, what are your obligations to offer leave, i.e., protected time off, as a reasonable accommodation under the ADA, which applies to all employers with at least 15 employees?
When considering this question, keep in mind that, unlike the FMLA, whose primary purpose is to give employees time off, an ADA accommodation is designed to enable the employee to perform the essential functions of the job. Leave as an accommodation in this instance must accomplish the objective of getting the employee back to work, not simply excusing her absences.
A typical example is an employee who is frequently late or absent because symptoms of her disability – diabetes, for example -- have made her unable to work. Providing the employee a period of leave in which to see her doctor and try to adjust her medication regimen could be a reasonable accommodation if the end result is that the employee can meet the employer’s attendance standards after returning to work.
On the other hand, if an employee is missing work because drowsiness is a side effect of her medication for a disability, and there is no other effective medication that does not have this side effect, providing leave would not be a reasonable accommodation because it cannot address the underlying attendance problem. It is not a reasonable accommodation to simply approve all of her absences just because they are related to a disability.
If you are unsure whether to offer leave as a reasonable accommodation, we are happy to help!