United States: When Is Employee Leave A Reasonable Accommodation?

Last Updated: June 8 2016
Article by Janet A. Hendrick

Latest EEOC Publication Preaches Flexibility

Five years ago, faced with mounting frustration of employers of all sizes in their efforts to comply with the Americans with Disabilities Act (ADA), the Equal Employment Opportunity Commission (EEOC) announced that it would provide much-needed guidance on the complex issue of leave as a reasonable accommodation for employees with disabilities. The long wait is finally over.

On May 9, 2016, the EEOC published "Employer-Provided Leave and the Americans with Disabilities Act." The publication notes that disability discrimination charges reached an all-time high in 2015, and a "troubling trend" has developed: employment policies that deny or restrict leave as a reasonable accommodation for employees with disabilities.

Here, after a brief summary of the underlying issue addressed in the publication, we provide important takeaways for employers. The overarching theme: flexibility.

The Primary Issue: Leave As A Reasonable Accommodation

The ADA requires, among other things, that employers provide "reasonable accommodations" to employees with disabilities if doing so will allow the employees to perform their essential job functions. An exception exists if the accommodation would cause the employer "undue hardship." 

For many years, the EEOC has reminded employers who are covered by the ADA (those with 15 or more employees) that granting an unpaid leave of absence, or granting additional time off above and beyond that available under the Family and Medical Leave Act (FMLA) or the employer's leave policies, may be a "reasonable accommodation that the employer should consider granting."

Key Takeaways For Employers

This obligation has left employers with many questions, including "how much leave is enough, or too much?" The new resource document provides many answers and several real-life examples of issues employers are facing, but fails to give concrete guidance on how to determine whether leave for a definite, yet lengthy, period is unreasonable. Here are some of the more important lessons you can learn from the publication.

You may have to provide leave even if the employee is not otherwise entitled to it.

The resource reminds employers that even if employees are not eligible for FMLA leave (for example, the employee does not yet meet the FMLA's eligibility requirements, has already exhausted FMLA leave, or works in a location with fewer than 50 employees within a 75-mile radius), they may nonetheless be entitled to leave under the ADA regardless of length of employment. ADA accommodation obligations apply on day one of employment for covered employers, regardless of the hours an employee has worked.

You may request medical information.

Employers often feel constrained in communicating with employees about their need for leave, and therefore may attempt to make accommodation decisions without adequate information. The resource document clarifies that you may request information from the employee or the employee's health care provider in order to better understand the employee's need for leave and expected date of return.

Undue hardships are (apparently) not dead.

The term "undue hardship," referring to a defense to providing a reasonable accommodation, is mentioned more than 30 times in the resource, indicating that it is in the forefront of the EEOC's mind. That's good news, as court decisions have left many believing this defense was all but futile. 

The EEOC reiterates some pointers for employers shared by Commissioner Chai Feldblum at a 2014 workplace conference. One important notion is that you may, and should, take into account leave an employee has already taken (even if protected by the FMLA) in determining whether additional leave will create an undue hardship for you. 

In other words, you should start assessing undue hardship as early as day one of an employee's leave. Also, the EEOC states in the resource that indefinite leave constitutes a per se undue hardship, and is therefore never required as a reasonable accommodation.

You may communicate with workers during leave.

Again, employers often express concern about communicating with employees during leave for fear of an "interference" claim. The EEOC's new resource clarifies that when an employee's return-to-work date has changed, or the employee has failed to provide a specific return-to-work date, you may request additional information from the employee or the health care provider.

Where an employee has a fixed return date, the EEOC provides that you may reach out to the employee "to check on the employee's progress." You can also inquire about the need for additional leave requests or about the likelihood that the employee will be able to return to work if you grant the additional leave request. 

Take caution if you use third-party leave administrators.

Many employers believe they are not responsible for decisions about administering leave if they have outsourced their leave administration to a third party. The EEOC emphasizes that you are responsible for ensuring that the administrator's communications with your workers, including by form letters, comply with the ADA.

Specifically, the EEOC reminds you that such communications must advise employees that unpaid leave may be available as a reasonable accommodation after other leave such as FMLA is exhausted. Overall, the EEOC publication states that lines of communication between all involved in leave decisions should be open to ensure consistency and ADA compliance.

"Maximum leave" and "100% healed" policies may need to be modified.

For years, the EEOC has been criticizing inflexible policies that, in the agency's view, work against employees with disabilities. Yet, as recent headlines make clear, some employers still enforce these types of policies. For example, policies that fall short of ADA compliance in the EEOC's view include "no fault" attendance policies that count every absence the same regardless of reason, and "100% healed" policies that require employees to certify that they have zero restrictions before returning to work from leave. 

The EEOC wants "employers to change the way things are customarily done." Although the EEOC states that maximum leave policies are not per se unlawful, the agency says that they should include language to clarify that you will consider requests for additional leave as a reasonable accommodation for employees who have a disability.

Don't Forget Other Accommodations

The EEOC publication goes beyond discussing leave as a reasonable accommodation. It also reminds employers that you need not necessarily grant employees the accommodation of their choice, and may consider alternative accommodations to leave if they are more feasible, less burdensome, or more likely to keep the employee at work. 

The resource document also provides one final warning. Many employers are unaware that the ADA obligates you to consider reassigning the employee to a new job as an accommodation when all else, including extended leave, fails to allow the employee to remain in his or her current job. The new job must be vacant (now or in the reasonably foreseeable future) and the employee must be qualified for the position. 

Although some federal courts disagree, the EEOC's position is that if reassignment is the only remaining accommodation, you must place the employee in a vacant position for which he or she is qualified without requiring the employee to compete with other applicants (unless doing so would violate a uniformly applied seniority system).

In Sum: Flexibility Is Key

To sum it up, the EEOC's latest publication reminds all employers that flexibility is key when it comes to considering and granting accommodations, especially when it comes to leave from work. You should take the time to review your current practices and policies to ensure that you stay on the EEOC's good side when it comes to complying with the ADA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Janet A. Hendrick
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.