Employment_186440912Within the past three months, the U.S. Equal Employment Opportunity Commission (EEOC) has secured nearly $9 million from companies that have committed violations of the Americans with Disabilities Act (ADA) by discriminating against and firing employees with disabilities who requested medical leave or exhausted their allotted medical leave to address those disabilities.

For example, on June 17, 2016, the EEOC announced that three integrated Nevada-based car dealerships will pay $50,000 for firing an employee with multiple sclerosis who requested medical leave for the diagnosis and treatment of her disability. According to the EEOC, about three months after Shara Rynearson was hired as a commissioned salesperson, she notified her supervisor of certain symptoms — including sudden vision changes, facial numbness and balance loss — that caused her to go to the emergency room in October 2010. Later, she showed her employer her hospital discharge papers, which included a diagnosis predicting multiple sclerosis. She also advised her employer that she could not work until after a medical appointment scheduled for early November to confirm the diagnosis. Instead of allowing Rynearson to take medical leave for the diagnosis and treatment of her disability, the company allegedly fired her on November 5, 2010.

In a different case, on May 13, 2016, the EEOC entered into an agreement with a home-improvement, appliance and hardware giant to pay $8.6 million for the firing three employees with disabilities and failing to provide reasonable accommodations to them when their medical leaves of absence exceeded the company’s 180-day (and subsequent 240-day) maximum leave policy between 2007 and 2010. The EEOC argued that the company’s automatic termination of employees who exceeded an arbitrary time limit on medical leaves of absence was unreasonable and a violation of the ADA. In fact, federal courts have consistently held that requests for extended leave can be a reasonable accommodation for a disability under the ADA, depending on the circumstances, and that automatic termination policies whereby an employer denies a request for such leave based on the employee having already been out a certain amount of time are unlawful.

To guide employers better on their obligations and duties under the law, on May 9, 2016, the EEOC issued new guidelines regarding when and how employers must provide leave under the ADA. This is the first time since 2002 that the EEOC has provided additional feedback on the medical leave requirements for employees with disabilities.

First, the EEOC guidelines make clear that employees requesting paid leave for ADA purposes must be treated the same as employees requesting leave for non-ADA purposes under existing leave policies. As a result, if an employer has a policy that does not require a doctor’s note from a nondisabled individual requesting paid leave, that employer cannot require its disabled employees to provide such documentation.

Second, the EEOC has taken the position that employers must treat all requests for leave due to a medical condition as requests for a “reasonable accommodation” under the ADA. This is true even if an employee does not specifically request leave as an accommodation. If the requested leave may be addressed under the Family and Medical Leave Act (FMLA) or a workers’ compensation program, the employer may provide leave accordingly. But if not, a request for medical leave must be treated as a request for a reasonable accommodation under the ADA.

Finally, employers have to consider providing unpaid leave as a reasonable accommodation even if (1) they do not provide such leave as a benefit; (2) the employee has already exhausted all available leave, including leave under the FMLA; or (3) the employee is ineligible to take leave under the employer’s policies.

Employers can deny unpaid leave as a reasonable accommodation only if doing so would be an “undue hardship” on the employer. To determine what constitutes an undue hardship, the EEOC suggests that employers consider the amount of leave requested, the frequency of the leaves, the flexibility with and predictability of the days on which intermittent leave is taken, the impact of the employee’s absence on co-workers and the performance of the employee’s specific job duties, and the impact on the employer’s operations.

In the case of the hardware giant, the national chain was entitled to have leave policies that establish a maximum amount of leave available to its employees. However, as the EEOC charged in its initial papers, the company could not perfunctorily terminate employees with disabilities who require leave beyond this maximum leave period — at least not without showing that providing such leave is an undue hardship. Otherwise, such inflexible leave policies can run afoul of the ADA.

The EEOC does note in its guidelines that employers are not limited to only providing leave (or extended leave for that matter), but may also consider other reasonable accommodations that could help the employee remain at work or return to work sooner than anticipated, as long as such accommodations would not conflict with the employee’s medical needs. This may help alleviate some of the undue hardship that may impact an employer’s operations.

In terms of what steps employers can take to ensure they are in compliance with federal law, and specifically the ADA, they can start by considering the steps some of the aforementioned companies were required to take in their respective settlements with the EEOC. This includes (1) hiring a consultant with ADA experience to review and revise company policies as appropriate, (2) implementing effective training for both supervisors and staff on the ADA, (3) developing a centralized tracking system for employee requests for accommodations, and (4) maintaining an accommodations log for all employees. All employers are encouraged to evaluate their own policies and practices and make the appropriate changes to ensure compliance with federal law.