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Avoiding Paid Time Off Traps
 
Published Thursday, April 13, 2017
by MATTHEW J. MOWRY


As the new year often means refreshing employee’s bank of paid time off, employers should pay attention to a new guidance issued by the Equal Employment Opportunity Commission (EEOC) that addresses employee requests for leave under the Americans with Disabilities Act (ADA).  

While the guidance does not change existing law, it does signal that the EEOC considers ADA leave requests a significant issue and that it will actively enforce this requirement of the ADA. It is important for employers to understand their obligations under the ADA with respect to leave requests, including the interplay between the ADA and other state and federal laws addressing leaves of absence, such as the Family Medical Leave Act (FMLA).  

ADA Overview
The ADA prohibits discrimination on the basis of a disability and requires that covered employers provide reasonable accommodations to applicants and employees that require such accommodations. A reasonable accommodation is a “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.”  

An employer is covered by the ADA if it employs 15 or more employees (or is a state or local employer). An employee is covered by the ADA if the employee is disabled and is capable of performing the essential functions of the job either with or without reasonable accommodation.  

The ADA defines a disability as: Having a physical or mental impairment that substantially limits one or more major life activities; having a record of such impairment; or being regarded as having such a disability.

The EEOC and the courts recognize that a request for leave by a disabled individual may qualify as a reasonable accommodation. As a result, an employer who employs a disabled employee must consider a leave request even if the employee is not otherwise entitled to leave under the employer’s personnel policies or under other applicable laws, such as the FMLA.

A leave request is a reasonable accommodation unless it creates an undue hardship for the employer. Factors to consider in determining whether a leave request creates an undue hardship include:

• The amount and/or the length of the leave requested.

• The frequency of the leave.

• Whether there is any flexibility with respect to the days on which the leave is taken.

• Whether the need for intermittent leave 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.

• The impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer.

FMLA Overview
The FMLA is a federal statute which requires that covered employers permit eligible employees to take up to 12 weeks of leave in a 12 month period in certain situations. This leave can be paid or unpaid. While on leave, the employee’s job must be left open and their benefits (such as health insurance coverage) must be continued.  An employer is covered by the FMLA if the employer has 50 employees. State and local employers are also covered by the FMLA regardless of the number of employees. An employee is eligible for FMLA leave if the following criteria are met:

• The employee must have been employed with the employer for one year.

• The employee must have worked at least 1,250 hours in the 12-month period prior to the leave request.

• The employer must employ 50 or more employees within 75 miles of the work site.

• The leave request must be for a qualifying reason, which includes, among other things, the birth of a child and to care for the newborn child; adoption or foster care to care for the newly placed child; care for an immediate family member (spouse, child or parent but not an “in-law”) with a serious health condition; and the employee is unable to work because of a serious health condition.

A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider and includes incapacity or overnight hospitalization; a period of incapacity requiring absence of more than three calendar days from work that also involves continuing treatment by a health care provider; a period of incapacity due to pregnancy, or for prenatal care; and a period of incapacity or treatment due to a chronic serious health condition, such as asthma, diabetes or epilepsy.

Employers should keep in mind that not all serious health conditions qualify as a disability and not all disabilities qualify as a serious health condition. For example, an employee who is pregnant or has a routine broken leg or hernia may have a serious health condition and be eligible for leave under the FMLA, but may not be considered disabled and entitled to leave under the ADA.

When FMLA and ADA Meet
Private sector employers with more than 50 employees and public sector employers are covered under both the FMLA and the ADA. As a result, these employers must consider leave requests under both the FMLA and the ADA if the employee is eligible.  

Here are some common scenarios where both laws apply:

A covered employer has an employee with a serious health condition who requests leave under the FMLA and uses the  12 weeks of leave permitted. Toward the end of his FMLA leave, the employee notifies the employer that he needs an additional three weeks of leave.  Does the employer have to provide the additional leave?

The answer is it depends. If the employee is disabled as defined by the ADA, the employer must allow the additional leave unless it creates an undue hardship for the employer. The EEOC and the court have not established a bright line test for what does and does not constitute an undue hardship.

The EEOC has indicated that an indefinite leave—meaning an employee cannot say whether or when he or she will be able to return to work at all—will constitute an undue hardship, and so does not have to be provided as reasonable accommodation.

However, where a disabled employee provides the employer with a more definite return date, the employer must make the difficult call and determine whether this additional leave period creates an undue hardship. The employer should generally err on the side of caution in considering ADA leave requests in these types of situations.  
An employer, who is not covered under the FMLA, but does have 15 or more employees, has an employee who requests a 12-week leave of absence due to a disability.  Does the employer have to allow the leave since it is not covered under the FMLA?

It depends on whether the 12 weeks of leave would create an undue hardship for the employer. The employer cannot, however, reject the leave request out of hand simply because it is not covered by the FMLA.  

Does the employer have to pay the employee during the ADA leave?

The ADA does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy.

For example, if an employer has a sick leave policy that provides 10 days of paid sick leave annually and allows non-disabled employees to use paid leave when sick, the employer must allow the disabled employee to use any remaining paid sick leave during the ADA leave.

Once the paid sick leave is exhausted, the employee is not entitled to additional paid leave as part of the reasonable accommodation request.

Donald Lee Smith, is an attorney and shareholder with the law firm of Devine Millimet in Manchester. He can be reached at 603-695-8729 or dsmith@devinemillimet.com.


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