EEOC Discusses Leave As Reasonable Accommodation

The Americans with Disabilities Act (ADA) was a milestone in the history of the rights of disabled Americans.  Passed in 1990, the law requires employers to  provide reasonable accommodations when necessary so that people with disabilities can perform the essential functions of their jobs, unless doing so would constitute an undue hardship to the employer.  Soon after the law was passed, ramps started to appear in workplaces around the country, as did bigger than usual bathroom stalls, allowing people in wheelchairs much easier access.  The numbers of the floors listed next to elevator buttons were now often accompanied by their braille equivalent.  These were very tangible, concrete changes that we all could see, as our country made its way to being a more inclusive society.  But another aspect of the ADA was that there are time when people with disabilities need extra time away from the office, whether for medical treatment, or some kind of therapy, or to learn to use a new piece of adaptive equipment.   And it has never been completely clear under what circumstance leave would qualify as a reasonable accommodation.

Last week, the Equal Employment Opportunity Commission had a meeting to try to clarify that ambiguity.  At that meeting, they heard a range of views from a diverse panel of experts on the matter.  While the witnesses differed as to some employer and employee obligations, they agreed on the need for clear and uniform guidance from the EEOC.

Presenting the view of large employers, Ellen E. McLaughlin, a partner in the law firm Seyfarth Shaw LLP, called on the EEOC to provide “more detailed and defined examples of situations where maximum leave policies are called into question and provide examples of times when additional leave will be deemed necessary and when it will not.”

Representing the San Francisco Legal Aid Society’s Employment Law Project, Claudia Center detailed several examples of clients who lost their jobs due to lack of additional leave for a reasonable accommodation, including people with cancer, a person who needed a liver transplant, and a veteran who needed time off for treatment of combat-related post-traumatic stress disorder.

“Leaves of absence are critical for retaining countless numbers of people with disabilities within the workforce,” Center said.  “At the same time, a leave of absence is not an end in and of itself.  The entire purpose of the leave is vitiated if the employee recovers but is terminated or otherwise barred from returning to work.  Such a leave is just a bridge to nowhere.”