Ohio Disability Discrimination Attorneys Insight: Medical Leave is a Reasonable Accommodation Under the Americans with Disabilities Act
This post is intended to provide general information regarding when and how medical leave, as a form of an accommodation, must be granted to an employee for reasons related to an employee’s disability in order to comply with the Americans with Disabilities Act. For specific questions about your situation, please utilize the contact form to speak with an Ohio disability discrimination attorney at Bryant Legal, LLC.
The Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis of disability in the workplace and requires that covered employers (those with 15 or more employees) must provide reasonable accommodations to applicants and employees with disabilities who require such accommodations due to their disability. Importantly, an employee or applicant must still be able to perform the essential functions of the job with or without an accommodation. An overview of disability discrimination can be found here.
What is an Accommodation?
A reasonable accommodation is generally “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.” See 29 C.F.R. § 1630.2(o). With respect to medical leave, an employee can request medical leave (or additional medical leave) as an accommodation so long as the leave is not indefinite (i.e. your return-to-work date is unknown).
An accommodation for medical leave includes making modifications to existing leave policies (e.g. “maximum leave” and “100% healed” provisions) and providing leave when needed for a disability, even where an employer does not offer leave to other employees or leave runs out under federal, state, or local laws (e.g. Family and Medical Leave Act). As with any other accommodation, the goal of providing leave as an accommodation is to afford employees with disabilities equal employment opportunities.
Employer policies that require employees on extended leave to be 100 percent healed or able to work without restrictions, as clarified below, will likely unlawfully deny some employees reasonable accommodations that would enable them to return to work. Additionally, employers sometimes fail to consider reassignment as an option for employees with disabilities who cannot return to their jobs following leave. Unless the employer can establish undue hardship (which is rare most of the time), these types of policies will likely violate the ADA under the Equal Employment Opportunity’s new guidelines describing medical leave as a reasonable accommodation.
Examples of Potential Violations under the ADA:
- Maximum Leave Policy
- Maximum leave policies (sometimes referred to as “no fault” leave policies) take many different forms. A common policy, especially for entities covered by the FMLA, is a flat limit of 12 weeks for both extended and intermittent leave. In the event an employee runs out of leave under the FMLA, but the employee requests additional leave as a reasonable accommodation, an employer must provide it so long as it does not impose undue hardship on the employer.
- 100% Healed Policy
- An employer will violate the ADA if it requires an employee with a disability to have no medical restrictions — that is, be “100%” healed or recovered — if the employee can perform her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship.
- Similarly, an employer will violate the ADA if it claims an employee with medical restrictions poses a safety risk but it cannot show that the individual is a “direct threat.” Direct threat is the ADA standard for determining whether an employee’s disability poses a “significant risk of substantial harm” to self or to others. If an employee’s disability poses a direct threat, an employer must consider whether reasonable accommodation will eliminate or diminish the direct threat.
- In some situations, the requested reasonable accommodation will be reassignment to a new job because the disability prevents the employee from performing one or more essential functions of the current job, even with a reasonable accommodation, or because any accommodation in the current job would result in undue hardship. If reassignment is required, an employer must place the employee in a vacant position for which he is qualified, without requiring the employee to compete with other applicants for open positions. Reassignment does not include promotion, and generally an employer does not have to place someone in a vacant position as a reasonable accommodation when another employee is entitled to the position under a uniformly-applied seniority system.
In the event you have a physical or mental impairment that constitutes a disability under the Americans with Disabilities Act and you have questions about requesting an accommodation or you believe your employer is treating you differently because of your disability or request for an accommodation, please contact an Ohio disability discrimination attorney to discuss in more detail.