The Equal Employment Opportunity Commission(EEOC) recently came out with a fact sheet explaining leaves of absence and the Americans with Disabilities Act(ADA). This is a practical guide with many useful examples for employers dealing with complex legal issues related to leaves of absence under the ADA and FMLA. In the fact sheet, the EEOC points out areas in which employers continue to make mistakes such as (1) not modifying leave policies that limit the amount of leave an employee can take when an employee needs additional leave as a reasonable accommodation; (2) requiring employees to be 100% healed or able to work without restrictions before allowing them to return to work; and (3) terminating employees who exhaust all of their FMLA leave without engaging in the “interactive process,” i.e. asking the employee how much longer they need to be on leave before unilaterally terminating the employee.
The fact sheet also gives practical examples of what factors can be considered in evaluating “undue hardship” under the ADA. Undue hardship is always a fact-specific analysis, but the factors that can be considered include: the amount and/or length of leave required; the frequency of leave; whether the need for intermittent leave is predictable or unpredictable; the impact of the employee’s absence on co-workers; impact on the employer’s operations; and its ability to serve customers/clients in a timely manner.
The fact sheet is a good resource for when you have ADA leave questions, but keep in mind that each situation is fact-specific.