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New ADA Resource

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New ADA Resource

May 10, 2016.  The EEOC issued a new ADA  covering what employers owe disabled employees under the Americans with Disabilities Act.

The new publication “Employer Provided Leave and the ADA” highlights several points we believe all disabled employees need to know.

First, the ADA may require your employer to offer you a reasonable period of unpaid leave above and beyond what it offers to non-disabled employees. Most of our clients recognize that an employer cannot deny them benefits that it offers to non-disabled employees.

What many disabled employees don’t know is that if an extended period of unpaid leave is the one thing that would permit a disabled employee to keep her job (for example, three weeks off in order to complete a cycle of chemotherapy), the employer must provide that leave unless it can demonstrate that doing so would be an “undue hardship.”

Factors that may be considered to determine whether an employer has shown that a proposed accommodation would be an “undue hardship” include:

  • the amount of leave required
  •  the frequency of leave
  • the flexibility of leave (whether it could be taken on different days)
  • the impact of leave on co-workers or the employer’s operations

Second, an employer may not retaliate against a disabled employee for making use of additional unpaid leave, or any other “reasonable accommodation.”  Many of our clients may not realize that illegal retaliation under the ADA could include an employer deciding not to promote a disabled person because she took a period of unpaid leave, or telecommuted for several months, as a reasonable accommodation for her disability under the ADA.

Third, an employer may violate the ADA by forcing an employee to be “100% healed” before she returns to work. For example, if a disabled employee would be able to return from a period of unpaid leave if she were permitted to work from home half time as a reasonable accommodation, the employer must permit her to do so unless it can show independently that permitting her to work from home would cause it “undue hardship.”

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Feinstein Doyle Payne & Kravec, LLC

Pittsburgh Office

429 Fourth Avenue, Suite 1300

Pittsburgh, PA 15219

Phone: +1 (412) 281-8400

Toll Free: +1 (888) 355-1735

Fax: +1 (412) 281-1007

New York Office

29 Broadway, 24th Floor

New York, NY 10006-3205

Phone: +1 (212) 952-0014