While the FMLA is a leave law, the ADA is an “inadvertent leave law,” said EEOC Commissioner Chai Feldblum. Commissioner Feldblum, who was instrumental in the drafting and enactment of the original ADA and the ADAAA, spoke at the DMEC Compliance Conference in National Harbor, Md recently. During her comments, Commissioner Feldblum also said that leave is “always” a reasonable accommodation because it is “plausible” and is subject only to the employer’s undue hardship defense.

Commissioner Feldblum’s use of the term “inadvertent” is thought-provoking. “Inadvertent” generally means unintended or accidental. It is not at all clear how the original ADA became the leave law it aspires to be today. The Commissioner’s suggestion that additional job-protected leave is “always” reasonable because it is “plausible” should also concern employers. Neither the ADA nor the EEOC’s 1991 regulations implementing the ADA employment provisions suggest that granting job-protected leave beyond the length of the employer’s policy would always be a “reasonable accommodation” subject only to an undue hardship defense. To the contrary, the Interpretive Guidance accompanying the EEOC’s 1991 ADA regulations states that leave policies could not be attacked through disparate impact theory and that an employer “may, in appropriate circumstances, have to consider the provision of leave” to a disabled employee as a reasonable accommodation if it did not pose an undue hardship.

The Commission went a few steps further when it issued its 2002 guidance on reasonable accommodation and undue hardship under the ADA.  There, the EEOC said that “[p]ermitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee’s disability. An employer does not have to provide paid leave beyond that which is provided to similarly-situated employees.”

Just a few lines later, the Guidance states that an employer may not apply a “no-fault” leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period, but must consider whether granting additional leave is an undue hardship.

In recent years, the EEOC has pursued this position aggressively in litigation, consistently arguing that employers may not “automatically terminate” an individual with a disability pursuant to a fixed leave policy, even after lengthy leaves of absence and absent any real request for accommodation by the employee. We have posted about that effort.  The EEOC ‘s position has put the burden on employers to determine whether and how much additional leave is needed, without any clear guidance on when enough is enough.

Both the ADA and the EEOC regulations require employers to reasonably accommodate “the known physical or mental limitations of an otherwise qualified individual with a a disability” unless the employer can establish that it would be an undue hardship to do so. As one court noted, “[w] hen a period of leave from a job may appropriately be considered an accommodation that enables an employee to perform that job presents a troublesome problem, partly because of the oxymoronic anomaly it harbors….”. “Not working is not a means to perform the job’s essential functions,” observed another.

So perhaps, the ADA is not an “inadvertent” leave law at all, but a non-leave law, seeking legitimacy as a leave law, unintentionally, accidentally or otherwise. Thus far, numerous courts have recognized that the ADA provides some measure of leave as an accommodation, but few have grappled with that oxymoronic anomaly.

The EEOC has been working on guidance on leave as a reasonable accommodation for several years. During the DMEC conference, Commissioner Feldblum said it was up to the Chair of the EEOC to determine when to “move” that Guidance. In earlier posts, I have noted that waiting for that guidance is like waiting for Godot. In this election year, I suspect we will not be seeing this guidance anytime soon. Until then, employers will be left to grapple with the question of when leave is a reasonable accommodation that allows an individual with a disability to perform the essential functions of his or her job.