Because the Americans with Disabilities Act (ADA) (as amended in 2009) is expansive enough to cover most medical conditions, many employees will, at some point during their tenure, need a reasonable accommodation. One accommodation that the Equal Employment Opportunity Commission (EEOC) considers presumptively reasonable is an unpaid leave of absence, even in instances where the employer is too small to be covered by the Family Medical Leave Act (FMLA) or the employee’s tenure is too short to be FMLA-eligible.

If the ADA covers most employees’ medical issues and considers an unpaid leave of absence to be a reasonable accommodation, then the ADA, for all intents and purposes, has swallowed the FMLA—at least as employee medical leaves are concerned.

In light of this intersection between the ADA and the FMLA, employers should beware of the following mistakes:

  • Those not covered by the FMLA should not assume that they never have to provide unpaid leave to employees
  • Employers covered by the FMLA should not assume that ineligible employees are never eligible for unpaid leave
  • Employers should not assume that the leave of an FMLA-eligible employee is capped at 12 weeks

Instead, non-FMLA employee medical leaves of absence should be determined between the employer and the employee through the use of the ADA’s interactive process. If not, you are putting yourself in the crosshairs of an ADA claim.

In fact, the ADA’s regulations specifically provide that an unpaid medical leave qualifies as a reasonable accommodation and must be provided to an otherwise qualified individual with a disability. Thus, an employer may still have to provide unpaid leave as a reasonable accommodation after an employee exhausts the 12 weeks of FMLA leave, if an employer has fewer than 50 employees or if the employee has less than one year of service.

The EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act provides the following helpful example:

An employee with an ADA disability needs 13 weeks of leave for treatment related to the disability. The employee is eligible under the FMLA for 12 weeks of leave (the maximum available), so this period of leave constitutes both FMLA leave and a reasonable accommodation. Under the FMLA, the employer could deny the employee the 13th week of leave. But, because the employee is also covered under the ADA, the employer cannot deny the request for the 13th week of leave unless it can show undue hardship. The employer may consider the impact on its operations caused by the initial 12-week absence, along with other undue hardship factors.

No leave must be extended indefinitely, and, at some point, will become an undue hardship to the employer and can be ended. When that is, though, is not only going to vary from employer to employer, but also from employee to employee. Each specific leave of absence must be analyzed on its own merits, case by case. A company must work with the employee and the medical caregiver to determine how long an employee needs to be off work, and make the best efforts, within reason, to accommodate the necessary leave for employees who qualify for protection under the ADA.

Employers need to be practical and tread very lightly around these issues. The EEOC is aggressively pursuing businesses that enforce leave of absence policies to the detriment of disabled employees by denying extended unpaid leaves. Unless you want to end up in the EEOC’s crosshairs, I recommend the following:

  1. Avoid leave policies that provide a per se maximum amount of leave, after which time an employee loses his or her job
  2. Engage in the interactive process with an employee who needs an extended leave of absence, which includes the gathering of sufficient medical information and a definitive return to work date documented by a medical professional
  3. Involve your employment counsel to aid in the process of deciding when an extended leave crosses the line from a reasonable accommodation to an undue hardship
  4. Open your workplace to disabled employees to demonstrate to the EEOC, if necessary, that you take your ADA obligations seriously
  5. Unpaid leaves and all associated costs (modified schedule, added overtime, temporary hires, lost productivity, etc.) should be documented to help make your undue hardship argument, if necessary

Remembering “A, E, I, O, U” can help you avoid the defense of a costly disability discrimination lawsuit.