The extent of an employer’s obligation to extend leave and excuse absences as a reasonable accommodation under the ADA is perhaps the most vexing ADA issue for employers. In June 2011, the EEOC held a public hearing on leave as a reasonable accommodation, and suggested it might issue guidance on the topic in 2011. When EEOC Commissioners were scheduled to speak at a December 2011 webinar entitled “ADA: Guidance from the EEOC,” guidance-watchers were agog since the timing was right for some hint of when this attendance guidance might be issued, and perhaps even a sneak peak at what it might say. Alas, not a single mention of this guidance during the webinar. The year ended, guidance-less.
Guidance-watchers waited with great anticipation for the EEOC’s April 25, 2012 meeting. Among the agenda items to be considered was “Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act,” a topic broad enough to encompass guidance on attendance issues. Also, for Commission Member Stuart Ishimaru, whose resignation from the Commission is effective April 30, if he were going to have an opportunity to weigh in publicly on the guidance, this was likely his last opportunity. Guidance hopes were dashed the morning of the hearing, when the EEOC’s website noted that this agenda item had been removed. Alas, no guidance, yet again. In the words of Beckett’s Estragon, “such is life.”
Employees not coming to work is something nearly all employers deal with regularly. Employers need guidance on the amount of leave they must grant disabled employees, and need assurance that they can require regular and predictable attendance, regardless of the reason for the absence.
It is unclear when, or even if, the EEOC will issue the much-needed and much-awaited guidance. Waiting for the guidance has become like waiting for Beckett’s Godot. Those waiting come to the realization at the end of each day that it is not coming today, it might come tomorrow.