Bending the Rules: The EEOC's Take on Leave as a Reasonable Accommodation

Defense Digest, Vol. 23, No. 3, September 2017

By David J. Oberly, Esq.*

Key Points:

  • Even when a worker has exhausted all of his or her leave under the FMLA, the worker may still be entitled to leave as an accommodation under the ADA.
  • Employers should avoid adherence to any type of "one-size-fits-all" leave or reasonable accommodation policies.
  • While the EEOC's position on leave may seem boundless, employers are not required to allow indefinite leaves of absence, and employers can obtain durational assurances from employees that they will be able to perform their job duties in the "near future."


With disability claims having reached an all-time high in recent years, the EEOC's recently released resource document on the issue of leave as a reasonable accommodation under the Americans with Disabilities Act—which is intended to provide information to employers regarding when and how leave must be granted for reasons related to a worker's disability in order to promote voluntary compliance with the ADA—is a noteworthy guide for employers looking to steer clear of this burgeoning type of discrimination claim. Employers are well advised to review the resource document in detail and evaluate the impact of the new rules on existing company policies and procedures, as the guidance provides critical insights on employers' leave obligations under the ADA and affords a glimpse into the EEOC's current interpretation of the ADA as it relates to leave as a reasonable accommodation.

In particular, there are several key takeaways for employers in connection with the EEOC's newest articulation of its position on employee leave. First, employers must ensure that they are cognizant of the intricate interplay between the FLMA and ADA when evaluating leave requests. While the FMLA imposes certain requirements that must be satisfied in order to be entitled to leave, the ADA maintains no similar eligibility requirements. As a result, when an employee requests leave for a medical-related issue, the company must evaluate the employee's right to leave under both the ADA and FMLA, providing the employee with the "greater right" applicable under the circumstances. For example, even if a worker has exhausted all of his or her allotted FMLA leave, he or she may still be entitled to additional leave in the event that it would constitute a disability-related reasonable accommodation and not an undue hardship on the employer.

Second, while the EEOC's leave guidance provides wide protections to employees attempting to utilize leave as an ADA reasonable accommodation, the EEOC did lay out some outer limits for an employer's leave obligations. In this respect, employers are not required to allow indefinite leaves of absence as indefinite leave has been delineated as constituting a per se undue hardship by the EEOC. Thus, employees must provide an estimated return-to-work date when the employee can be expected to return to the jobsite. In addition, employers can seek durational assurances from the employee that he or she will be able to perform his or her essential job duties in the "near future."

Third, employers should ensure that all leave requests are analyzed by engaging in the interactive process with employees. Even when workers are not eligible for medical leave under other policies or law, employers are nonetheless still required to engage in the interactive process to ascertain whether leave can be provided as a reasonable accommodation without causing an undue hardship.

Fourth, employers should steer clear of any one-size-fits-all policies pertaining to leave and reasonable accommodations. In this regard, employers should take a close look at any existing "automatic termination" policies to ensure they do not run afoul of the new EEOC guidelines. While this type of policy is not automatically unlawful across the board, many policies of this type may now be unlawful under the EEOC's current position regarding leave. Moreover, when an employee is nearing the end of a leave period, the employer should notify the employee that if he or she feels that additional unpaid leave is needed, the employee should request such additional leave as soon as possible in order to allow the company to consider whether it can authorize an extension without causing undue hardship. Similarly, employers should scrap all policies that require employees to be "100% healed" before being able to return to work, as the EEOC has stated in clear terms that such practices are unlawful. In this regard, a policy will conflict with the ADA if it requires an employee with a disability to have no medical restrictions, or be 100% healed, in order to be allowed to return to work, so long as the employee is able to perform his or her job responsibilities with or without reasonable accommodation. Rather, companies must employ policies that allow for individualized evaluations of a worker's ability to return to work with or without a reasonable accommodation under the ADA.

Finally, employers should consider implementing the specific criteria laid out in the new guidance regarding a company's undue hardship analysis in existing policies and procedures for requested ADA-related leave. In doing so, employers will be well armed and prepared to fight any employee disputes regarding denied leave requests where the employer can demonstrate that the request would have caused an undue hardship based on the specific factors laid out by the EEOC for analyzing the issue.

Ultimately, while the EEOC's new guidance does not significantly alter the EEOC's position on leave as a reasonable accommodation, the guidance does demonstrate that the EEOC intends to continue focusing on this specific issue with extra care for the foreseeable future. With this increased emphasis on leave, employers should scrutinize their own leave and reasonable accommodation processes carefully in order to ensure that they do not run afoul of the ADA.

*David is an associate in our Cincinnati, Ohio office. He can be reached at 513.372.6817 or


Defense Digest, Vol. 23, No. 3, September 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact