Thursday, December 12, 2019
Corporate Compliance Insights
  • Home
    • Home
  • About
    • About CCI
    • Writing for CCI
    • Advertise With Us
  • Articles
    • See All Articles
    • Compliance
    • Ethics
    • Risk
    • FCPA
    • Governance
    • Fraud
    • Audit
    • HR Compliance
    • Cybersecurity
    • Data Privacy
    • Financial Services
    • Leadership and Career
  • Industry News
  • Jobs
  • Events
    • Webinars & Events
    • Submit an Event
  • Downloads
    • eBooks
    • Whitepapers
  • Podcasts
  • Videos
  • Subscribe
No Result
View All Result
  • Home
    • Home
  • About
    • About CCI
    • Writing for CCI
    • Advertise With Us
  • Articles
    • See All Articles
    • Compliance
    • Ethics
    • Risk
    • FCPA
    • Governance
    • Fraud
    • Audit
    • HR Compliance
    • Cybersecurity
    • Data Privacy
    • Financial Services
    • Leadership and Career
  • Industry News
  • Jobs
  • Events
    • Webinars & Events
    • Submit an Event
  • Downloads
    • eBooks
    • Whitepapers
  • Podcasts
  • Videos
  • Subscribe
No Result
View All Result
Corporate Compliance Insights
Home HR Compliance

5 Questions About Leave as a Reasonable Accommodation Under the ADA

by Paul Kramer
August 5, 2014
in HR Compliance
5 Questions About Leave as a Reasonable Accommodation Under the ADA

The workforce management function is fraught with challenges. Complying with rapidly changing legislation, which can vary on a local, state and national level, can be difficult enough; ensuring internal resources are properly trained on new processes and that all employees understand those changes further complicates an already challenging environment. One area that continues to cause much confusion is the Americans with Disabilities Act (ADA), which prohibits discrimination against individuals with disabilities and removes barriers so they can equally participate in employment opportunities.

Despite this legislation being in effect since 1990, many employers are still unclear regarding the definition of disability under the ADA, as conditions such as high blood pressure, depression or back ailments can be considered disabilities. Moreover, depending on the type of disability and other factors, a job may need to be restructured, modified or made part-time so those individuals can perform the essential functions of their jobs. Another solution under the ADA is to offer unpaid leave as a way to provide reasonable accommodation to employees with disabilities, even if they have exhausted other forms of leave such as those provided by the Family and Medical Leave Act (FMLA).

ADA and leave-related issues continue to be a top-of-mind concern for many employers, and new regulations put these policies under increased scrutiny. As such, it is crucial that managers understand the rules and regulations of the ADA, its impact on leave policies and how they and their teams can best comply with those laws. The following are some of the most common questions employers have about leave as a reasonable accommodation under ADA:

What is the difference between leave as an ADA reasonable accommodation and FMLA leave?

One of the most challenging aspects of leave is understanding where ADA and FMLA policies overlap – and where they don’t. While the ADA applies to organizations with at least 15 employees, the FMLA applies to companies with 50 employees or more. Therefore, many organizations must contend with both acts, which can cause great confusion about the various regulations impacting their operations.

One of the main differences is that employees are eligible for ADA-covered leave due to disability from their first day of work, while FMLA covers those who have been with the company for at least 12 months. Moreover, ADA is more expansive, covering additional situations that FMLA does not, meaning that if an employee exhausts his or her FMLA leave entitlement, they may be able to receive additional leave under ADA as a reasonable accommodation.

What are the conditions for ADA leave?

Under the ADA, the employer does not have to grant the specific accommodation requested by the employee. For instance, if there are multiple effective accommodations, the company has the right to offer a different type of accommodation. Though ADA is designed to protect the employee, it also aims to ensure the employer can provide accommodation with minimal impact to the business. For instance, if the leave requested by the employee would impose undue hardship on the employer, the employer can offer reasonable accommodation in the form of reduced working hours, reassign tasks or switch them temporarily to a different position if these accommodations would be effective.

What constitutes as an undue hardship?

Given the murkiness surrounding the topic of undue hardships under the ADA and lack of concrete rules, it is important to understand how those situations are qualified. When an employee requests leave as an accommodation for a disability, the individual’s absence can cause significant losses in productivity. As a result, the company may need to find a replacement to compensate for the worker’s absence, and those added costs may be considered an undue hardship on the employer. Alternately, while the employee is on leave, the company could be at risk of losing sales or it may have to defer projects until after the employee returns, which would likely impose undue hardship on the employer.

Whether an accommodation would be an undue hardship for an employer is impacted further by factors like the size and financial resources of the company; since larger companies are less affected by the absence of a single employee, they can grant more leave than a smaller organization. Ultimately, it is up to the employer to determine any potential hardship resulting from extended leave and grant accommodations accordingly.

How can employers avoid ADA violations?

With the complexity surrounding ADA, it is important that employers understand their obligations and potential sources of non-compliance risk. The use of inflexible leave policies has been a common source of ADA violations because they do not allow for leave as a reasonable accommodation for a disability. No-fault attendance policies and maximum leave rules have both gotten employers into trouble.

However, court decisions have not been uniform regarding the status of inflexible leave policies. In Hwang v. Kansas State University,1 a court ruled that an inflexible leave policy granting up to six months of leave was “more than sufficient” to meet the requirement for reasonable accommodations. This ruling makes it appear that inflexible leave policies are permissible if they offer sufficient leave time and are consistently enforced, but other courts may see it differently, further complicating the issue.

The best way to avoid ADA violations is to ensure there is an open ADA interactive communication process between the employer and any employee with a disability when determining whether there is a reasonable accommodation that will allow them to perform the essential functions of their jobs. The company should also inform and remind employees of its ADA policies, and employees requiring leave accommodation due to disability should be able to openly discuss their needs with their supervisor. Through these dialogues, the company can understand the needs of its employees and work together to provide reasonable leave accommodation.

Can leave as an ADA reasonable accommodation be taken on an intermittent basis?

One of the biggest misperceptions about ADA leave is that employers will see their employees disappear for a few months. However, ADA leave isn’t always for a definite amount of time. Rather, the employee may request intermittent leave whereby their disability doesn’t prevent them from working on a daily basis, but instead impacts the frequency with which they work. For example, the employee may be only able to work for five hours a day or three days a week, or they may have to take off every Thursday for treatment during their period of disability. Here again, the interactive process is essential so employee and manager alike understand the requirements, the extent of the intermittent leave and how the company can continue to operate effectively while assisting the employee.

As the regulatory environment surrounding ADA leave increases, employers must ensure they understand the act, its impact and how they can maintain compliance. While the act may be complicated, it is a necessary aspect in fostering an inclusive environment for all employees. Unlike other disability accommodations, such as a new chair for someone with a bad back that help employees at that particular time, ADA leave is designed to help employees prepare to return to work in the future. As such, when equipped with a greater understanding of ADA leave, employers can work to provide the support their employees need to perform their job better.

NOTE: Federal, state and local regulations change on a fairly frequent basis. To ensure you’re current, please be sure to check with local council or other labor law resources.


1 Hwang v. Kansas State University, U.S. Court of Appeals Tenth Circuit, May 2014. (Accessed from:  https://www.ca10.uscourts.gov/opinions/13/13-3070.pdf)


Tags: ADAFMLA
Previous Post

Health Care Litigants Continue to Win Access to Risk Management Docs, LeClairRyan Attorneys Warn

Next Post

Alfredo Lizano Named Trade Compliance Officer LatAm for Syngenta Crop Protection

Paul Kramer

Paul Kramer, an attorney-at-law, is Director of Compliance at WorkForce Software. He is responsible for researching and staying abreast of labor laws that affect clients, ensuring compliance is embedded in WorkForce Software’s EmpCenter® products and consulting with clients on compliance audits in the areas of the FLSA, FMLA and other wage/hour and absence laws. Prior to joining WorkForce Software, Kramer was a private attorney, employed at The Fishman Group for 14 years, and has represented employers nationally in employment and labor law matters. Kramer holds degrees from Central Michigan University and a J.D. from Michigan State University College of Law.

Related Posts

blue car with lyft and uber stickers on rear window

The Potential Consequences of California’s AB5

November 27, 2019
businesswoman pushing businessman away

Sexual Harassment: Focus on Culture, Not Compliance

November 7, 2019
yellow "open enrollment ahead" sign posted on road in autumn

Open Enrollment: Engaging, Educational, Compliant?

November 5, 2019
AI and HR: Will AI Chatbots Replace the Employee Handbook?

AI and HR: Will AI Chatbots Replace the Employee Handbook?

October 29, 2019
Next Post

Alfredo Lizano Named Trade Compliance Officer LatAm for Syngenta Crop Protection

Free Downloads

OFAC whitepaper cover
Compliance Job Interview Q&A
Reputation Risk Management Research

RSS SEC Litigation News

  • John Special, Defendant, and Michael Murphy, Relief Defendant, John Kenneth Davidson December 12, 2019
    SEC Obtains $3 Million Settlement in Insider Trading Action
  • Palm Beach Atlantic Financial Group, LLC and William A. Smith December 11, 2019
    SEC Charges Florida Resident and His Corporate Entity for Fraudulent Securities Offerings
  • Nanotech Engineering, Inc., Michael James Sweaney (also known as Michael Hatton), David Sweaney, and Jeffery Gange December 11, 2019
    SEC Obtains Asset Freeze to Halt Alleged Offering Fraud

Jump to a Topic:

anti-corruption anti-money laundering/AML Artificial Intelligence/A.I. automation banks Big Data blockchain board of directors board risk oversight bribery CCPA/California Consumer Privacy Act Cloud Compliance communications management corporate culture corporate governance culture of ethics cyber risk data analytics data breach data governance decision-making Dodd-Frank DOJ due diligence fcpa enforcement actions GDPR GRC HIPAA information security internal audit internet of things (IoT) KYC/know your customer machine learning monitoring regtech reputation risk risk assessment Sanctions SEC social media risk technology third party risk management tone at the top training whistleblowing
No Result
View All Result

Privacy Policy

Follow Us

  • Facebook
  • Twitter
  • LinkedIn
  • RSS Feed

Category

  • Audit
  • Compliance
  • Compliance Podcasts
  • Cybersecurity
  • Data Privacy
  • eBooks
  • Ethics
  • FCPA
  • Featured
  • Financial Services
  • Fraud
  • Governance
  • HR Compliance
  • Leadership and Career
  • News
  • Opinion
  • Resource Library
  • Risk
  • Uncategorized
  • Videos
  • Webinars
  • Whitepapers

© 2019 Corporate Compliance Insights

No Result
View All Result
  • Home
  • About
  • Articles
  • News
  • Podcasts
  • Videos
  • Whitepapers
  • eBooks
  • Events
  • Jobs
  • Subscribe

© 2019 Corporate Compliance Insights