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Employment Law Alert – EEOC Guidance on Leave and Minimum Wage Increases

June 30, 2016

EEOC Provides Guidance on Leave as a Reasonable Accommodation

In early May, the EEOC provided guidance on leave under the Americans with Disabilities Act (ADA).  The document provides an understanding of what the EEOC means by providing “reasonable accommodations.”

The EEOC states that the “purpose of the ADA’s reasonable accommodations obligation is to require employers to change the way things are customarily done” so that employees with disabilities can work.  The document provides guidance for six areas, including the following key takeaways:

  • Requests for ADA leave must be assessed under the same criteria as requests for other leave.  (E.g., If an employer allows employees to use paid annual leave for any reason, without requiring an explanation, that employer cannot then require that employees provide an explanation and take unpaid sick leave when he/she finds out the reason for the leave is related to a disability.)

  • Unpaid leave is typically considered a reasonable accommodation. 

  • Employees cannot be penalized for using leave as a reasonable accommodation.

  • Best practice: assume the ADA applies whenever an employee requests leave for a medical condition.

  • Leave requests are part of the interactive process, requiring the employer to work with the employee and health care provider to request information to assess the type of leave needed.  When there is no fixed date for the employee’s return to work, the employer can request additional information to assess the situation.  However, if a fixed date is set, an employer cannot reach out to the employee for periodic updates.

  • ADA leave may exceed the employer’s established caps on leave as part of a reasonable accommodation. 

  • Employers may not have a 100% healed/recovered policy if the employee can do his/her job with or without a reasonable accommodation, unless the employer can demonstrate there is “undue hardship.”  Additionally, an employer cannot conclude that an employee with medical restrictions poses a safety risk, unless it can show the individual is a “direct threat.”

  • If reassignment is necessary as a reasonable accommodation, the EEOC requires the employee be placed in a position for which he/she is qualified.  It does not require promotion.

  • An employee who requests an indefinite leave of absence probably is not asking for a reasonable accommodation. 

July 1 Minimum Wage Increases

 As a reminder, the minimum wage will increase on July 1, 2016 in Maryland (to $8.75), Montgomery County (to $10.75), and D.C. (to $11.50).  The Virginia minimum wage is not scheduled to increase, and will remain at $7.25 an hour.

The contents of this Alert are for informational purposes only, and do not constitute legal advice. If you have any questions about this Alert, please contact a member of the Shulman Rogers Employment and Labor Law Group or the Shulman Rogers attorney with whom you regularly work.


Meredith “Merry” Campbell

Gregory D. Grant

Joy C. Einstein