New Guidance on Employer Provided Leave and the ADA

May 20 2016 - Disabilities, Time Off - Gail Cecchettini Whaley

ADA and employees with disabilitiesThe federal Equal Employment Opportunity Commission (EEOC) recently released a new resource document relating to the rights of employees with disabilities who are seeking leave as a reasonable accommodation under the Americans with Disabilities Act (ADA).

According to the EEOC, disability charges filed with the agency reached a new high in fiscal year 2015 and increased over six percent from the previous year.

One problem the EEOC frequently sees is employer policies that put a cap on the maximum amount of leave an employer will provide to an employee. While an employer may set forth its policy regarding leave, the employer may have to grant leave beyond this amount as a reasonable accommodation to a disabled employee under the ADA.

This is also the law in California: California law specifically requires employers to initiate the interactive process with an employee who has a disability and has exhausted leave under the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). Extension of leave may be a reasonable accommodation for the employee.

Other problems the EEOC frequently sees are “100% healed” policies where the employer requires the employee to have no medical restrictions before returning to work. Under both federal and state law, employers cannot impose fully healed policies on employees before they return to work. Instead, employers must individually assess an employee’s ability to perform the essential functions of his job with or without reasonable accommodation.

California employers should take note that the EEOC guidance also discusses the use of doctors’ notes for paid sick leave. The state Labor Commissioner has taken the position that denying leave because an employee failed to provide a doctor’s note or other details about the leave may lead to a claim against the employer for violation of California’s paid sick leave law. Yet, other leave laws allow for medical certification. Employers with questions about when they can and cannot get medical certification should consult legal counsel.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

CalChamber members can read more on Reasonable Accommodation of Disabilities in the HR Library. Not a member? See how CalChamber can help you.

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