EEOC Issues Guidance on Leaves of Absence As Accommodation



By:  Karen L. Piper


On May 9, 2016, the EEOC issued 12-page guidance on leaves of absence as an accommodation for an employee with a disability. Employer-Provided Leave and the Americans With Disabilities Act.  The document provides general information.

1. Equal Access To Leave.

Employers must treat requests for a leave of absence from an employee with a disability the same as it treats requests from non-disabled employees.  The rule applies to sick days, as well as to longer paid and unpaid leaves.  For example, if an employer requires a doctor’s note for health-related leaves, it may require them for disability-related leaves.

2. Leave Must Be Granted As A Reasonable Accommodation Unless It Would Cause An “Undue Hardship.”

A leave of absence is considered a reasonable accommodation when it enables an employee to return to work following leave.  Leave must be considered even if the employer does not offer leave as a benefit, even if the employee is not eligible under the employer’s leave policy and even if the employee has exhausted leave under the employer’s policy.

3. Leave And The Interactive Process.

Whenever an employee requests a leave of absence for a medical condition, the employer must engage in the interactive process, unless the request can be addressed under FMLA, workers’ compensation or the employer’s leave policy.

The interactive process generally starts with medical information including:

  • Specific reason the employee needs leave, (e.g., for surgery and recuperation, adjustment to a new medication, physical therapy, etc.);
  • Whether the leave is concurrent or intermittent; and
  • When the need for leave will end.

4. Maximum Leave Policies.

EEOC views automatic termination provisions – provisions in leave policies that require an employee to return to work or be terminated after a designated period of leave – as a failure to engage in the interactive process.  At the end of the employer’s maximum leave period, the employer is expected to discuss with the employee if there is an accommodation that would facilitate her return to work.

5. Reassignment To A Vacant Position.

This type of accommodation is required if an employee has a vacant position that the employee with a disability can perform.

6. Undue Hardship.

Unlike the FMLA, there is an undue hardship defense to leaves of absence as an accommodation.  An employer may consider:

  • How long an employee requires leave, e.g., 3 months, 6 months, and how frequently, e.g., 2 days per week, 3 days per month, etc.
  • Whether a different day of the week might be effective, e.g., Thursdays, instead of Fridays.
  • Whether the need for leave is predictable (e.g., for physical therapy) or unpredictable (e.g., for seizures).
  • The impact of the leave on other employees, i.e., the extent to which other employees have to perform extra work when the employee with a disability is absent and what that means to the business in terms of meeting contractual obligations, incurring significant overtime costs, etc.
  • The impact on the employer’s operations and its ability to meet its customers’ needs in an appropriate and timely manner.

Accommodating an employee’s need for a leave of absence involves consideration of the FMLA, if applicable; workers’ compensation law, if applicable; and the employer’s policies and practices.  For guidance in complying with these various obligations, consult experienced employment counsel, such as the author.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law.  Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information are included in the re-post of the article. May 2016.