June 7, 2023

Volume XIII, Number 158


June 07, 2023

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June 06, 2023

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EEOC Aims to Clarify Leave Rights Under the ADA

On June 8, 2011, the Equal Employment Opportunity Commission (EEOC) held a public hearing to address leave as a reasonable accommodation under the Americans with Disabilities Act (ADA). Whether to provide unpaid leave as a reasonable accommodation, and how much leave to provide, are common problems for employers. Moreover, mishandling the leave as an accommodation issue is a frequent basis for litigation.

Although the ADA does not specify any particular amount of leave as a reasonable accommodation, the EEOC takes the position that some finite period of unpaid leave may be required. This situation frequently arises when an employee is out on Family and Medical Leave Act (FMLA) leave for a reason that also qualifies as an ADA disability. Employers who automatically terminate employment at the end of FMLA leave without considering whether some amount of additional unpaid leave will allow the employee to return to work face the possibility of litigation under the ADA.

Two recent federal court cases that led up to the EEOC’s June 8th public hearing showed the problem with inflexible leave policies. In 2009, the EEOC settled a case with Sears Roebuck & Co. for $6.2 million, and in 2011, the EEOC settled with Supervalu supermarkets for $3.2 million. Both cases arose from terminations of employees based on inflexible leave policies and lack of an interactive process at the end of the leave period to determine if additional leave would allow the employees to return to work.

The recent public hearing allowed employers and employment attorneys to express their concerns about the lack of clear guidance on this issue. John Hendrickson, an EEOC attorney, said employers should bear in mind the following:

  • Inflexible period of disability leave does not satisfy the ADA
  • Appropriate leave under the ADA requires an individualized assessment of the employee’s situation, even when the employer’s leave policy is generous
  • Use of third party administrators to handle leave issues separate from the decision makers on ADA accommodation requests is a dangerous practice for employers
  • Clear lines of communication between employer and employee are essential
  • EEOC plays a critical role in litigating these ADA leave cases because of the resources required

EEOC Commissioner Stuart Ishimaru hopes to have the EEOC update its ADA guidance regarding leave by the end of the summer, although the other EEOC commissioners think the guidance will come later. Employers should stay alert for the EEOC’s updates in this area and should be careful when terminating employees at the end of established leave periods to avoid ADA liability.

© 2023 Poyner Spruill LLP. All rights reserved.National Law Review, Volume I, Number 178

About this Author

Kevin M. Ceglowski, Employment and Labor Lawyer, Poyner Spruill, Law Firm

Kevin represents employers in many areas of labor and employment law, including race, age, gender, religion, national original, and disability employment discrimination claims, wrongful discharge claims, and wage and hour claims. He defends clients before administrative agencies such as the Equal Employment Opportunity Commission, the Department of Labor, and the North Carolina Employment Security Commission, in state and federal courts, and in arbitrations. Kevin also provides guidance to management to ensure employment practices are in full compliance with all...

David L. Woodard, Employment Litigation Attorney, Poyner Spruill, Law firm

David practices in the area of employment litigation.  He regularly advises and defends clients in race, age, disability and sex discrimination and harassment cases; reviews handbooks and termination issues; and provides compliance advice on matters of employment law.

Representative Experience

McNeil v. Scotland County - Obtained summary judgment for employer where plaintiff alleged race discrimination and retaliation in violation of Title VII of the Civil Rights Act as well as violation of the Americans...