Suppose you have an employee who has used up every kind of leave that your district makes available. Then the employee brings in a medical document stating that he has a physical or mental impairment that substantially limits his performance of the major life activity of working. He needs some additional time off. Here are some options:
A. Turn down that request. He’s already been given the same benefits as all other employees. Now he’s asking for more than that. So if this guy misses one more day of work, fire him.
B. Heave a sigh of resignation and grant the request. Continue him on paid leave due to the Americans With Disabilities Act. Stare sullenly out the window while contemplating the unfairness of it all.
C. Grant the request, but make it unpaid leave. See how he likes them apples.
D. Scratch your chin and ponder: will granting the leave create an undue hardship for your district? If it will, turn down the request. If not, grant the request for unpaid leave.
If you are scratching your chin and pondering…congratulations!! D is the correct answer. So we are advised by the EEOC in a guidance letter issued earlier this year: https://www.eeoc.gov/eeoc/publications/ada-leave.cfm
Does this mean that the employee with an ADA-condition might be getting MORE leave than other employees? Yes. But remember—the Americans with Disabilities Act requires that employees be given equal opportunities. Sometimes, to make opportunities equal you have to provide treatment that is a bit more than equal. As the EEOC letter reminds us, reasonable accommodation may mean changing “the way things are customarily done.”
DAWG BONE: ADA ACCOMMODATIONS CAN INCLUDE EXTRA UNPAID LEAVE.
File this one under: DISABILITY LAW