Employer-Provided Leave and Reasonable Accommodation Rights

Your Right To Reasonable Accommodation Of Your Disability In Relation To Leave Time Provided By Your Employer

The Americans With Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) make it illegal to discriminate against people based on a disability both as a job applicant and an employee. On May 9, 2016, the Equal Employment Opportunity Commission (EEOC) issued guidance about how leave time must be granted for reasons related to a person’s disability. This clarification is designed to help employers and employees understand what is expected of employers so that employees with disabilities are not discriminated against and they are afforded a reasonable accommodation for their disabilities.

Employers Must Provide Equal Access to Leave Time

Many employers provide employees with either paid or unpaid leave time. Some provide a certain number of sick and vacation days. Others provide a set number of personal days to be used however the employee wants. The EEOC guidelines make clear that employers are required to provide employees with disabilities with the same leave time benefits as other employees who are not disabled. This means an employer must do the following:

• If an employee asks for time off related to his disability, his employer must treat his request the same as he would for an employee who requests time off that is not related to a disability. If other employees do not have to submit a doctor’s note, the employer cannot require the worker taking time off due to his disability to do so.
• Employers are permitted to have policies requiring all employees to provide a doctor’s note to take leave time for an illness. However, the rule cannot be directed only at people with disabilities.

Employers Are Required to Grant Leave Time as a Reasonable Accommodation

As the EEOC guidelines explain, to achieve the goals of the ADA, employers are required to change the way they do things in order to enable its employees with disabilities to continue to work. Allowing employees leave time to enable them to return to work after their leave time ended is considered a reasonable accommodation employers must often make. This goes beyond providing the same benefits as other non-disabled employees.

An employer has a duty to consider offering unpaid leave time to a worker with a disability unless it would create an undue hardship for the employer. However, an employer is not required to provide paid leave that is not provided to all workers. Providing unpaid leave could be required in these situations:

• The employer does not offer employees leave time as a benefit.
• The employee does not qualify for any leave offered as an employee benefit.
• The employee has exhausted other provided employer leave, under California’s workers’ compensation laws, Family Medical Leave Act (FMLA), or other state or federal laws.

An employer is prohibited from penalizing an employee from taking leave time as a reasonable accommodation. This would make the accommodation ineffective and would be an illegal form of retaliation under the ADA and FEHA.

How the Duty to Make Reasonable Accommodations Affects Maximum Leave Policies

Maximum leave policies are policies that set the maximum amount of time an employer will provide or allow an employee to be off work in a given year. They can take many forms. For example, the FMLA gives employees a limit of 12 weeks of intermittent or extended leave. Some employers could have other policies, such as limiting unplanned leave time to five days during a 12-month period combined with a progressive discipline system. While employees with disabilities are not exempt from maximum leave policies in general, employers can be required to modify these policies as part of a reasonable accommodation unless they can show it will cause an undue hardship.

If you are an employee with a disability, you have a right to take needed leave time as an accommodation of your disability—both under the ADA and FEHA. The FEHA could give you additional protections than the ADA, such as no cap on the amount of compensation you are entitled to. The Law Office of Corbett Williams is here to help. Start an online chat to schedule your free case evaluation.

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