Leave Without Pay As A Reasonable Accommodation

By: Shelby J. Luna, Drewry Simmons Vornehm, LLP

Have you ever had an employee (not your star employee of course), you know, that one employee who always tries to game the system, catch every single loophole, and takes every single hour of any time off “owed” to them whether they are “sick” or not, show up in HR making a request for MORE time off than the employee even qualifies for under the company’s benefit plans? And this request usually comes despite the fact this employee has already used every single PTO, sick day, vacation day, FMLA day and any other leave time your company offers. Nonetheless, the company may have to provide additional time off without pay as a reasonable accommodation. This applies equally to all employees, but I use this extreme example because it is a scenario I have seen time and again in counseling my clients through complex FMLA and/or ADA issues. So, when is an employee leave required as a reasonable accommodation?

The EEOC provides guidance for this very scenario and has specifically outlined that in certain situations, an employer may need to provide leave as a reasonable accommodation under the Americans with Disabilities Act. This reasonable accommodation is no different than any other accommodation under the Act, in that the employer must only do what is reasonable and will not result in an undue hardship. As with all accommodations, it is a fact sensitive, case-by-case analysis. The ADA applies to an employer with 15 or more employees. Reasonable accommodations by definition include, “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.” As such, the EEOC takes the position that “making modifications to existing leave policies and providing leave when needed for a disability, even where an employer does not offer leave to other employees.”

Thus, back to our example above. If your employee went to HR seeking additional time off following the end of his/her FMLA, and if the leave is requested due to the employee’s disability, it is likely the company will need to engage in the interactive process to determine if such time off without pay would be required as a reasonable accommodation. What the court’s (and EEOC) have made clear, is that unlimited leave or leave with no end date, is not required as a reasonable accommodation. Thus, it is important to seek competent counsel for these very situations. Before taking action and denying such a request, consider whether the leave would be a reasonable accommodation, and thus required under the law.