In June 2011, the EEOC held a public hearing on leave as a reasonable accommodation under the ADA and suggested it might issue guidance on the topic. We posted previously that waiting for that guidance is like waiting for Beckett’s Godot, where those waiting come to the realization at the end of each day that he is not coming today, he might come tomorrow.
BNA reported that a senior attorney for the EEOC said in a January webinar that is it “somewhat unlikely” that the EEOC would issue leave guidance during fiscal year 2014. It is not coming this year, it might come next year.
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. Employers have waited and continue to wait for guidance. And while waiting, every time an employee is on extended leave—after having exhausted FMLA and whatever additional leave the employer provides—the employer will continue to ask: How long must I wait? How long must I wait before filling that long unoccupied position?
In the words of Beckett’s Estragon, “such is life.”