As a Maine and/or New Hampshire employer, you probably spend more time than you would like thinking about employee leave—FMLA (Maine and federal), Paid Family and Medical Leave (PFML)(Maine and New Hampshire), Earned Paid Leave (EPL), and the ADA/Maine Human Right Act (MHRA)/New Hampshire Law Against Discrimination (NHLAD), all of which mandate leave in certain circumstances. And those are aside from vacation, holidays, PTO and sick time.
You may have reached the point that you are inclined to even suggest leave just to avoid the whole issue of whether an employee is entitled and what bucket it falls under, especially when you know that leave can be a form of reasonable accommodation.
But that approach can be a dangerous way to approach workplace issues. Leave is not always the right answer.
When Leave Can Be a Reasonable Accommodation
Under the ADA and the MHRA/NHLAD, leave can qualify as a reasonable accommodation as long as it doesn’t create an undue hardship for the employer. It can include leave for various reasons and duration, depending on the circumstances (such as recovering from a medical condition, seeking treatment for an addiction, adjusting to medication, and more.).
When Leave Isn’t the Right Answer
It is a mistake to assume that leave will always be a reliable default accommodation. For example:
- When other accommodations work better.
- The EEOC has clarified that if both leave and remote work are possible accommodations (and assuming remote work allows the employee to keep performing their job), requiring an employee to take leave could violate the ADA. Why? Doing so would be forcing the employee to accept a less effective form of accommodation (i.e., depriving a qualified employee from performing their job).
- When assumptions replace dialogue.
- The same can be true where employers make assumptions about an employee’s ability to perform the essential functions of their job rather than working with the employee to clarify limitations. Communication is key to determining the best fit.
The Pregnant Workers Fairness Act
This can also be an issue under the federal Pregnant Workers Fairness Act (PWFA), which requires employers to provide reasonable accommodation for employees with known limitations due to pregnancy, childbirth, or related medical conditions. You might jump to the conclusion that leave is an appropriate reasonable accommodation option under the PWFA. However, this law very specifically says that it is an unlawful employment practice for employers to require a qualified employee to take leave (paid or unpaid) if another reasonable accommodation can be provided. So, leave under the PWFA is a reasonable accommodation of last resort and you will need documentation to show that other options were exhausted prior to the leave option.
Religious Accommodation and the Muldrow Decision
This issue also comes up in the context of accommodation of a religious belief. Since the US Supreme Court’s decision in Muldrow v. City of St. Louis significantly lowered the standard for what constitutes an “adverse employment action” in claim of workplace discrimination, employers have to be careful about how they are accommodating an employee’s absences necessitated by religious observance. Requiring an employee who requests time off for religious belief or absences to take paid (or unpaid) leave rather than finding an accommodation that will allow them to continue working can now constitute an adverse employment action.
Bottom Line
Every situation is different, but one thing is clear: leave can be a reasonable accommodation, but not always the best or only one.
Before defaulting to leave, engage in the interactive process, explore other options, and document your decision-making.
Anne-Marie Storey is a seasoned labor and employment attorney with over two decades of experience advising businesses through complex work issues. For more information about how to navigate workplace leave issues, contact Anne-Marie at astorey@bernsteinshur.com.