ADA Reasonable Accommodation – Leave

As you know Ohio State is a covered employer under the Americans with Disabilities Act.  As OSU’s Equal Employment for Individuals with Disabilities Policy 4.45 states:  “It is a violation of university policy to discriminate in employment against a qualified person in regard to any employment practice or term, condition or privilege of employment because that person currently has a disability, at one time had a disability or is regarded as having a disability. It is also a violation of this policy to deny an employment opportunity or benefit or otherwise discriminate against an individual, whether or not the individual has a disability, because that individual has a known relationship or association with a person who has a disability. This prohibition applies to job application procedures, hiring, advancement and discharge of employees; employee compensation; job training; and all other terms and conditions of employment.”

Did you know the U.S. Equal Employment Opportunity Commission (EEOC) has recently published a resource document on leave as a reasonable accommodation under the ADA?

Federal regulations define a reasonable accommodation broadly as, “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”  Remember an employer does not need to make an accommodation if it will cause an “undue hardship”; meaning a significant difficulty or expense to the employer.

The EEOC’s resource document provides the following guidelines:

  1. Equal access to leave under an employer’s leave policy:  If an employer gets a leave request for leave that is within leave policy, the employer should treat the employee the same as it would an employee requesting leave for a non-disability related reason.
  2. Leave and the interactive process: The EEOC favors an interactive process, the employee and employer communicating about their needs.  The process, as stated by EEOC, is intended to “change the way things are customarily done” and in the least painful way to ensure all parties are on the same page.
  3. Maximum leave policies: Under the ADA, employers are required to explore allowing people to use leave as a reasonable accommodation beyond what may be allowed under a maximum leave policy.
  4. Return to work and reasonable accommodation (including reassignment): Be sure to follow the transitional work policy to allow a disabled employee to return to work.  Avoid having “one-hundred percent healed” policies.
  5. Undue hardship: The EEOC provides a list of things to consider when determining if an accommodation request is an undue hardship.  This is a case-by-case determination.

Modified from:  Littler Mendleson, PC June 14, 2016, “Leave as a Reasonable Accommodation for ADA Compliance ”, by Peter A. Susser and Cori K. Garland

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