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Employer Provided Leave and the Americans with Disabilities Act

Disability discrimination charges filedwith the Equal Employment Opportunity Commission (“EEOC”) has increased oversix percent since 2015.  The majority ofclaims allege employers fail to grant reasonable accommodations to qualifiedindividuals with a disability.  Anaccommodation is considered reasonable if it does not create an undue hardshipon the employer.  Given the increase indisability discrimination claims, franchisees must be aware of theirresponsibilities under the Americans with Disabilities Act (“ADA”).  In May 2016, the EEOC published a document toeducate employers on utilizing leaves of absence as a reasonable accommodationunder the ADA.  

Thesix key points of reference include the following: 

  • If an employer receives a leave request for reasons related toa disability and the leave falls within the employer’s existing paid leavepolicy, the employer should treat the employee requesting the leave the same as anemployee who requests leave for reasons unrelated to a disability.
  • Where an employee has exhausted their paid leave or wherethe employer maintains no paid leave policy, an employer mustconsider providing unpaid leave to an employee with a disability as areasonable accommodation if: 1) the employee requires it; and 2) it does notcreate an undue hardship for the employer. 
  • When an employee requests leave oradditional leave for a medical condition, the employer must treat the requestas one for a reasonable accommodation under the ADA.
  • Employers must make exceptions to theirpolicies, including leave policies, in order to provide a reasonableaccommodation, unless the employer can show that doing so will cause an unduehardship.
  • If an employer requires an employeewith a disability to have no medical restrictions prior to returning to workand the employee can perform the job with or without a reasonable accommodation,without causing an undue hardship, the employer has violated the ADA. 
  • When assessing whether to grant leaveas a reasonable accommodation, an employer may consider whether the leave wouldcause an undue hardship.

Additionally, the resource documentprovided further guidance on the importance of the interactive process.  According to the EEOC, this process is “designedto enable the employer to obtain relevant information to determine thefeasibility of providing leave as a reasonable accommodation without causing anundue burden.” Given the complexity of the ADA, franchisees should consult witha professional to ensure existing policies and procedures are compliant.

TheEEOC’s report can be found on its website at: https://www.eeoc.gov/eeoc/publications/ada-leave.cfm  

Visit FranchiseExpo.com where you can search for opportunitiesby industry, investment level and area while researching the franchise industry as a whole using its free resources.

 

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