On May 9, 2016, the EEOC published a “document seeking to provide general information to employers and employees regarding when and how leave must be granted for reasons related to an employee’s disability.” The document largely restates existing law, but in some respects calls for a reexamination of the leave policies in public safety agencies.
To begin with, the EEOC has reiterated its somewhat unusual position on requirements for doctor’s notes to justify the use of sick leave. Courts have distinguished between two types of doctor’s notes: those that contain diagnostic information and those that do not. Courts have fairly routinely found that while doctor’s notes in the latter category do not implicate the Americans With Disabilities Act (ADA), those that contain diagnostic information must be both “job related and consistent with business necessity” to pass muster under the ADA.
The EEOC’s position has been for some time that requirements for doctor’s notes are permissible so long as the employer requires the notes for all employees. However, the EEOC has never clearly indicated whether its rules apply to doctor’s notes containing information about the employee’s medical condition.
The May 6, 2016 guidance continues the mystery. The EEOC answered the following hypothetical question: “An employee with a disability asks to take six days of paid sick leave. The employer has a policy requiring a doctor’s note for any sick leave over three days that explains why leave is needed. The employee must provide the requested documentation.” Parsing the text, the EEOC is still taking the position that doctor’s notes requirements must be uniformly imposed on all employees (the “any sick leave” language), but has not indicated whether the requisite doctor’s notes can contain diagnostic information.
The EEOC was clearer in its discussion of “maximum leave policies,” which set limits on how much unpaid leave employees can take. The EEOC opined that “although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, they may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship.”
The EEOC also weighed in on employer “return to work” policies and the ADA. The EEOC wrote: “Employees on leave for a disability may request reasonable accommodation in order to return to work. The request may be made by the employee, or it may be made in a doctor’s note releasing the employee to return to work with certain restrictions.
“An employer will violate the ADA if it requires an employee with a disability to have no medical restrictions – that is, be 100% healed or recovered – if the employee can perform her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship. Similarly, an employer will violate the ADA if it claims an employee with medical restrictions poses a safety risk but it cannot show that the individual is a direct threat. Direct threat is the ADA standard for determining whether an employee’s disability poses a significant risk of substantial harm to self or to others. If an employee’s disability poses a direct threat, an employer must consider whether reasonable accommodation will eliminate or diminish the direct threat.”