This Wisdom of the Crowd, compiled from responses posted on the Compliance and Ethics forum* addresses paid time off requests with ADA accommodations. Resource published on October 27, 2016, and republished on April 8, 2023.
*(Permission was received from ACC members quoted below prior to publishing their forum Comments in this Wisdom of the Crowd Resource).
Question
An employee of ours asked the manager for approval of a two week vacation later in the year. The manager responded that, given employee's position, two weeks isn't something he is comfortable with (one week would be fine). The employee later comes back saying that he needs the full two weeks to allow for travel to/from the destination because of his disability. We believe this to be back pain, but it has not been a subject of previous accommodation other than perhaps an informal offering of a more comfortable chair.
Do we have to accommodate the request? Can we ask for medical verification of the need for additional time? Does this trigger other obligations moving forward? Wisdom of the Crowd
Response #1: The basics of the American with Disabilities Act (ADA) is that a covered employee can request a reasonable accommodation to allow that employee to perform the essential functions of his/her job. Without knowing the specifics of the job performed by this employee, successfully arguing that paid time off is an essential function of his/her job would be out of the norm. The employer can also deny a request for a reasonable accommodation where it would cause an undue hardship. Please keep in mind these two things: (1) the ADA is now very broadly construed, usually giving the benefit of the doubt to the employee; and (2) proving something is an undue hardship is a high burden for an employer.Functionally, though, I think you're most likely facing a situation where if you deny the extra travel time, the employee can find another way to accomplish what he wants - being absent due to a flare up of the condition and a doctor's excuse to cover it; a doctor's recommendation that the employee needs to take time away to allow recovery from an exacerbated condition, taking the Family Leave and Medical Act (if you're subject to that law), etc.1Response #2: I agree with the previous response that the ADA reasonable accommodations provisions likely wouldn't cover the means and manner that the employee utilizes his leave benefit.That said, other employee protections may arise in this situation. For example, have other employees in the organization or in the role taken two consecutive weeks of leave? If so, it may look like your manager may be discriminating here. There may be a legitimate business reason for the decision, but now that the company knows of the disability -- such as it is -- you need a heightened sensitivity to any differential treatment.There are also practical considerations. Assuming the company has a policy in place regarding using and scheduling leave, does the policy permit a manager to deny leave? Is the manager acting consistent with that policy?Is your leave policy "use or lose" ? If so, is the company prepared to provide other arrangements for this employee to retain that leave or be paid out?In my opinion, you may have to call baloney on the manager saying he's not comfortable allowing the employee to leave for two weeks. It appears the employee is giving fair notice and providing the manager the opportunity to back-fill the role. I understand a business's interest in being lean, but preventing an employee from using a employer-provided benefit because of discomfort will create longer term morale and retention challenges.2Response #3: Seems to me that a simple solution would be to agree that the employee may take two weeks but the company will pay for one. As others have noted, that proposal assumes that one paid week is the company policy for a similarly situated employee, and Response #2's observation is critical to confirm that the manager not being "comfortable" with two weeks leave is not denying the employee the right to exercise his company benefit at his discretion, if he is in fact entitled to two weeks. However, if one week paid time off is the company entitlement and the employee claimed additional leave rights under the Family Leave and Medical Act (FMLA), that FMLA leave would be unpaid. And as other have noted, I have never seen a case where the ADA "reasonable accommodation" requirement applied to leave, rather than work. You seem to have a clear record that the request was for two weeks vacation, and the unspecified "disability" request came after the manager offered one, so a later claim for additional medical leave would be suspicious at best. It would seem prudent to first confirm your company's leave policy, and then to separately interview both the manager and the employee to try to get a feel for any underlying information. Simply your fact-finding involvement as corporate counsel may be sufficient to prompt the manager and employee to modify the request or behavior of one of both and possibly find their own resolution.3
1Laura Woods, Senior Attorney, Eastman Chemical Company (2/5/2016)
2Thomas Julian, Corporate Counsel & Risk Manager, Centennial Contractors Enterprises, Inc. (2/5/2016)
3Paul Vince, Retired (2/6/2016)
Region:
United States
The information in any resource collected in this virtual library should
not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.