Intermittent leave: It isn't just for FMLA anymore

Only 34 years ago, there were no laws to protect most disabled employees. In fact, as recently as 1989, a person could be fired by their employer because they were deaf, had an injured back or some other impairment that prevented them from doing their job. That changed in 1990, when the landmark Americans with Disabilities Act (ADA) was enacted to prohibit discrimination based on disability. The ADA transformed how people with disabilities are treated in the workplace.

ADA protections

Under the ADA, employers are required to provide reasonable accommodations to qualified individuals with disabilities, unless doing so would pose an undue hardship. It also prohibits discrimination, retaliation and harassment of disabled persons. The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities. And while we often think of a disability as something a person is born with, a disability can result from anything — a car accident, a house fire, etc. The ADA was amended in 2008 to broaden its definition of disability — and many states’ laws define disability more broadly than the ADA does.

Types of reasonable accommodation

A reasonable accommodation is defined as any change in the work environment, or in the way things are customarily done, that enables an individual with a disability to enjoy equal employment opportunities. Put simply, accommodations are changes that will allow the employee to do their job despite their disabling condition. The determination of whether an accommodation is reasonable is made on a case-by-case basis.

There are three types of accommodations. One is to accommodate restrictions within the position. For example, a qualified disabled individual may need modified equipment, a schedule change or perhaps a closer parking spot. In any event, a worksite modification is often the best choice for the employer and employee, as it keeps the employee working.

In instances where the impairment prevents an employee from working at all, employees may be granted leave as an accommodation. Specifically, an employer must consider leave if the employee requires it — even if:

  • Leave is not offered as an employee benefit
  • The employee is not eligible for leave under the employer’s policy, and
  • The employee has exhausted (or is ineligible) for FMLA or another applicable statutory leave

The third type of accommodation is reassignment to a vacant position for which the employee is qualified. This is often referred to as the accommodation of last resort. Notably, concerning any accommodation request, an employer need not grant the accommodation if it would unduly burden the organization.

Why intermittent leave is necessary

Intermittent leave is defined as leave taken in multiple blocks of time due to a single qualifying reason (an employee requests unscheduled time off for migraine headaches, for example, or an employee takes off the first and third week of the month for chemotherapy). While it is widely known that the Family and Medical Leave Act (FMLA) requires intermittent leave, many do not know that the ADA also requires consideration of intermittent leave requests. As mentioned previously, undue hardship considerations apply when reviewing leave requests.

Intermittent leave can be beneficial as it enables an employee to continue working through their illness; this allows the employee to continue being productive and receive pay. Additionally, employees often heal quicker when they are working versus sitting at home. The employee is not the only beneficiary; the employee’s continuation on the job benefits the employer as well as the employee’s colleagues.

Common misconceptions

It is commonly believed that ADA intermittent leave is a free pass for the employee to come and go as they please. This is false. Rather, an employee intermittent ADA leave must still attend work predictably and dependably, as well as follow the employer’s attendance and other workplace policies. Almost all circuit courts have held that an employee may not sustain an ADA claim if they are violating attendance policies. Many also believe an employer needs to approve leave into perpetuity. This is false. Courts have universally held that indefinite leave is not considered a reasonable accommodation.

Tips for employers: how to best handle intermittent leave requests

As with any accommodation request, employers should read the employee’s medical documentation with a detailed eye to better understand the worker’s true limitations. For intermittent leave requests, l documentation should specify the employee’s particular needs, including frequency (e.g., time off, breaks) and length of leave time. It also helps to collaboratively engage the employee in a discussion about what would help them perform their essential job duties. And, in situations where employers are on the fence about granting an accommodation, they should consider trying the accommodation on a trial basis. Employers should document all aspects of the interactive discussion including the final accommodation.

Curtailing abuse

In situations where an employee consistently exceeds the agreed-upon frequency and duration, employers may ask for an updated certification from the healthcare provider inquiring whether the additional leave is warranted. Then, the employer can reevaluate whether the request constitutes a hardship. And of course, an employer should not disproportionately discipline disabled employees for attendance issues more often than it does employees who are not disabled.

The bottom line

In addition to acting as a “shield” to protect from non-compliance, intermittent leave can also act as the “sword” that creates a positive and inclusive culture, increases retention, encourages productivity and saves money. For an employee who can discharge the essential functions of the job on a reduced schedule, or whose condition is unpredictable, intermittent leave may accomplish the best of both worlds for both the employer and employee.

Some of these concepts were previously shared in a session presented by Adam Morell and Sara Elder at the 2023 DMEC Annual Conference.

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