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Motivated by the increasing number of disability discrimination charges related to leave policies, the Equal Employment Opportunity Commission (EEOC) recently issued new guidance discussing unpaid leave as a reasonable accommodation under the Americans with Disabilities Act (ADA). The guidance can be found at

The guidance makes clear that exhausting the employer’s normal paid or unpaid leave policies "is not the end of an employer’s obligations under the ADA … An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation … so long as it does not create an undue hardship for the employer." Thus, employers must consider unpaid medical leave as a reasonable accommodation to employees with disabilities, regardless of whether the employers offer leave under their existing policies, or the employees are ineligible for or have exhausted their leave benefits. The guidance also addresses the interactive process as it relates to return-to-work issues, maximum leave policies, reassignment and undue hardship.

Leave as a Reasonable Accommodation

The guidance states that if an employer has an existing leave policy, it must give employees with disabilities equal access to such policies. For example, if an employer provides sick days or paid time off to all employees and does not require employees to provide documentation of the need for such leave, an employer cannot require an employee with a disability to provide a doctor’s note to use such leave. In other words, the employer must treat an employee with a disability who is requesting leave under an employee’s existing policy the same as the employee who requests leave for reasons unrelated to a disability.

The guidance emphasizes that the "purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work." This means that employers must consider unpaid leave as a possible reasonable accommodation even when the employer does not have a policy offering leave as an employee benefit, the employee is not eligible for leave under the employer’s existing policy or the employee has exhausted all leave provided under the employer’s existing policies.

As highlighted in the guidance, an employer cannot penalize an employee for using leave. The guidance makes clear that such action would violate the ADA, and may constitute retaliation. As an example, the guidance states that if an employee with a disability takes leave, and as a result, fails to meet productivity standards, the employer must take into account the employee’s leave when evaluating the employee’s productivity and performance.

Interactive Process

When an employee with a disability requests leave for a medical condition, the employer must treat this request as one for a reasonable accommodation under the ADA. If the employer can provide the leave under the employer’s existing policies, such as FMLA or short-term disability leave, the employer may utilize these policies to provide the leave requested. If the employee does not qualify for leave under the employer’s existing policies, or if the employer does not offer leave to its employees, the employer must engage in an interactive process with the employee, to obtain relevant information to determine whether the leave can be provided without causing an undue hardship. The guidance states that when engaging in the interactive process, the employer should focus its information gathering on:

  • the specific reason the employee needs leave;
  • whether the leave will be for a block of time or intermittent; and
  • when the need for leave will end.

The employer may also obtain information from the employee’s health care provider to: (i) confirm or elaborate on information the employee provided; and (ii) answer questions to help the employer understand the need for the leave, the amount and type of leave required and whether there are alternative reasonable accommodations other than leave that could be effective for the employee (i.e., part-time work, telework, breaks, removal of marginal functions, etc.).

The guidance states that the interactive process may be continued during leave and prior to an employee’s return to work. In particular, while an employer cannot require an employee who has a fixed return date to provide periodic updates, the employer may reach out to an employee on extended leave to check on the employee’s progress.

The guidance suggests that employers who use form letters to communicate with employees nearing the end of their leave allotment should revise their letters to let employees know that if they need additional unpaid leave as a reasonable accommodation for a disability, they should notify their employer as soon as possible. If an employer utilizes a third-party administrator to handle certain types of leave, the guidance makes clear that employers must ensure these third-parties are using appropriate forms and are instructing employees to contact the employer directly for additional leave needed beyond established leave policies.

Return to Work

Under the ADA, if an employee takes leave as a reasonable accommodation, the employee has the right to return to his or her original position upon recovery. However, if holding the position open causes an undue hardship, an employer must consider whether there are alternatives that can be provided so the employee can return to work.

The interactive process may continue beyond an employee’s return to work, if the employee returns with restrictions. The employer can talk with both the employee and the employee’s health care provider to determine what possible accommodations an employee would need to be able to perform the essential functions of his or her job, the reasons for such accommodations, the length of time the accommodations would be needed and whether any of the accommodations would cause an undue hardship.

In accordance with the EEOC’s prior position, policies requiring employees to be "100 percent healed" before returning to work will violate the ADA.


The EEOC takes the position that reassignment can be a possible reasonable accommodation. If reassignment is required, "an employer must place the employee in a vacant position for which the employee is qualified, without requiring the employee to compete with other applicants for open positions." However, the guidance asserts that reassignment does not include a promotion; and generally is not required when another employee is entitled to the position under a uniformly-applied seniority system.

Undue Hardship

When determining if granting leave would cause an undue hardship, employers should consider the following factors:

  • the amount and/or length of leave required;
  • the frequency of the leave;
  • whether there is any flexibility with respect to the days on which leave is taken;
  • whether the need for intermittent leave on specific dates is predictable or unpredictable;
  • the impact of the employee's absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner; and
  • the impact on the employer's operations and its ability to serve customers/clients appropriately and in a timely manner.

The guidance confirms that requests for indefinite leave would be considered an undue hardship and does not have to be provided as a reasonable accommodation.

While this new guidance does not have the force of law, it highlights the priority the EEOC places on leave issues. Employers should review their existing leave policies and reasonable accommodation processes, including the processes used by any of their third-party administrators, for compliance with the ADA.