Employers in California must be increasingly cognizant of the Americans with Disabilities Act (ADA) as it applies to employees and prospective employees. Title 1 of the Act specifically prohibits employers with 15 or more employees from discriminating against workers who have a disability. An individual with a disability is a person who:
· Has a physical or mental impairment that substantially limits one or more major life activities;
· Has a record of such an impairment; or
· Is regarded as having such an impairment.
Furthermore, and where it can become a potential litigation hotbed for some employers, the Act requires a business owner to provide reasonable accommodations to such an employee. While the Equal Employment Opportunity Commission (EEOC) defines a reasonable accommodation as “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities”, this rather nebulous explanation is constantly being honed by the EEOC. In fact, the EEOC recently issued a notice that specifically referred to granting leave to an employee as a means of providing reasonable accommodation.
Employee Leave as a Reasonable Accommodation
According to the EEOC, “employees with disabilities must be provided with access to leave on the same basis as all other similarly-situated employees … If an employee’s request for leave falls within the employer’s existing leave policy, it should treat the employee requesting the leave the same as an employee who requests leave for reasons unrelated to a disability.” It is important to note, however, that granting any kind of reasonable accommodation, including leave, is not required if an employer can show that providing the accommodation would impose an undue hardship on its operations or finances. Additionally, employers are entitled to have policies that require all employees to provide a doctor’s note or 
other documentation to substantiate the need for leave.
What if your employment policies do not allow for leave in certain instances? For example, during the first six-months of employment, after an employee has exhausted the number of days normally granted in a year, and/or he or she has already taken FMLA leave, etc…? Here, it is important to note that even if the granting of leave would not be permitted under internal policies or handbook language, the employer must go through the reasonable accommodation analysis to determine whether granting the leave would create an undue hardship. Not surprisingly, failure to do so after an employee requests leave as an accommodation might subject the employer to a charge of discrimination against a disabled individual.
For more information on how to handle ADA reasonable accommodation requests in your workplace, contact experienced business attorney Drew E. Pomerance today.
