Providing Leave As an Accommodation Under the ADA

An Employer's Obligation

While an employer is under no obligation to provide a qualified employee with paid leave beyond that which is provided to similarly situated employees, the employer must grant the individual unpaid leave if the paid leave is insufficient to cover the entire period. This rule rebuffs the common assumption that qualified employees are no different from other employees in their entitlement to additional leave. In providing additional unpaid leave to a qualified employee, employers should allow the individual to exhaust accrued paid leave first, and then use unpaid leave. For example, if an employer's policy is that all employees get 10 days of paid leave, and a qualified employee needs 15 days of leave related to his/her disability, then the employer should allow the individual to use 10 days of paid leave and five days of unpaid leave. Even if employers have a “no-fault” leave policy under which employees are automatically terminated after they have been on leave for a certain period of time, they are still required to provide the additional leave to qualified employees unless they can show that: 1) there is another effective accommodation that would enable to the person to perform the essential functions of his/her position; or 2) granting additional leave would cause an undue hardship. Additionally, an employer cannot penalize a qualified employee for work missed during leave taken as a reasonable accommodation, since doing so would be considered retaliation for the qualified employee's use of a reasonable accommodation to which he/she is entitled under the law.

The Metrics

There is no specific metric for how long an employer must keep a qualified employee on unpaid leave. Rather, the standard is that employers are required to hold a qualified employee's job open as a reasonable accommodation unless it can show that doing so causes undue hardship. If an employer cannot hold a position open during the entire requested leave period without incurring undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and then reassign the employee to that position to begin working at the end of the leave period. If an equivalent position is not available, the employer must look for a vacant position at a lower level. If a vacant position at a lower level is also unavailable, the employer is not required to provide continued leave as reasonable accommodation.

The ADA and the FMLA

Finally, employers should be aware of the interaction between the leave requirements under the ADA and the Family Medical Leave Act (FMLA). For the most part, employees eligible for leave under the FMLA will not be entitled to leave as a reasonable accommodation under the ADA, either because they do not meet the ADA's definition of disability, or the need for leave is unrelated to their qualifying disability. However, when an employee's request for leave does qualify under both the ADA and FMLA, the employer should consider the individual's rights under both statutes and provide leave under whichever statutory provision provides the greater rights to employees.

Tina Maiolo is a Member of Carr Maloney, PC., Washington, DC. She specializes in the areas of employment and labor law, immigration law, civil rights law, business law and commercial litigation, and regularly manages legal matters specific to nonprofit and charitable organizations as well as religious institutions. Alexander M. Gormley is an Associate at the firm.

Title I of the Americans with Disabilities Act of 1990 (the “ADA”) requires an employer to provide reasonable accommodations to qualified individuals with disabilities (“qualified employees”) who are employees or applicants for employment, unless to do so would cause undue hardship. Reasonable accommodations must be provided to qualified employees regardless of whether they work part-time or full-time, or are considered “probationary.” There are a number of possible reasonable accommodations that an employer might be required to provide to qualified employees. Permitting the use of accrued paid leave or unpaid leave is one such reasonable accommodation, and the purpose of this article is to briefly explain an employer's responsibilities in responding to a qualified employee's request for leave.

What the ADA Says

Under the ADA, a qualified employee who needs leave related to his/her disability is entitled to such leave if there is no other effective accommodation and the leave will not cause undue hardship. Some examples of disability-related reasons for which a qualified employee may need leave are to obtain medical treatment for a disability, to recuperate from an illness stemming from a disability, and to train a service animal (e.g., a guide dog). “Undue hardship” means significant difficulty or expense, and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation.

An Employer's Obligation

While an employer is under no obligation to provide a qualified employee with paid leave beyond that which is provided to similarly situated employees, the employer must grant the individual unpaid leave if the paid leave is insufficient to cover the entire period. This rule rebuffs the common assumption that qualified employees are no different from other employees in their entitlement to additional leave. In providing additional unpaid leave to a qualified employee, employers should allow the individual to exhaust accrued paid leave first, and then use unpaid leave. For example, if an employer's policy is that all employees get 10 days of paid leave, and a qualified employee needs 15 days of leave related to his/her disability, then the employer should allow the individual to use 10 days of paid leave and five days of unpaid leave. Even if employers have a “no-fault” leave policy under which employees are automatically terminated after they have been on leave for a certain period of time, they are still required to provide the additional leave to qualified employees unless they can show that: 1) there is another effective accommodation that would enable to the person to perform the essential functions of his/her position; or 2) granting additional leave would cause an undue hardship. Additionally, an employer cannot penalize a qualified employee for work missed during leave taken as a reasonable accommodation, since doing so would be considered retaliation for the qualified employee's use of a reasonable accommodation to which he/she is entitled under the law.

The Metrics

There is no specific metric for how long an employer must keep a qualified employee on unpaid leave. Rather, the standard is that employers are required to hold a qualified employee's job open as a reasonable accommodation unless it can show that doing so causes undue hardship. If an employer cannot hold a position open during the entire requested leave period without incurring undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and then reassign the employee to that position to begin working at the end of the leave period. If an equivalent position is not available, the employer must look for a vacant position at a lower level. If a vacant position at a lower level is also unavailable, the employer is not required to provide continued leave as reasonable accommodation.

The ADA and the FMLA

Finally, employers should be aware of the interaction between the leave requirements under the ADA and the Family Medical Leave Act (FMLA). For the most part, employees eligible for leave under the FMLA will not be entitled to leave as a reasonable accommodation under the ADA, either because they do not meet the ADA's definition of disability, or the need for leave is unrelated to their qualifying disability. However, when an employee's request for leave does qualify under both the ADA and FMLA, the employer should consider the individual's rights under both statutes and provide leave under whichever statutory provision provides the greater rights to employees.

Tina Maiolo is a Member of Carr Maloney, PC., Washington, DC. She specializes in the areas of employment and labor law, immigration law, civil rights law, business law and commercial litigation, and regularly manages legal matters specific to nonprofit and charitable organizations as well as religious institutions. Alexander M. Gormley is an Associate at the firm.