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Strang, Patteson, Renning, Lewis & Lacy – August 2017

Unpaid Leave as Reasonable Accommodation

by Jenna Rousseau of  Strang, Patteson, Renning, Lewis & Lacy s.c.    844.833.0828

Under the Americans with Disabilities Act (ADA), covered employers (15 or more employees) are prohibited from discriminating against “qualified individuals” on the basis of disability. Additionally, covered employers must provide reasonable accommodation to allow qualified individuals to perform the essential functions of their positions, unless doing so would cause undue hardship to the employer.

Similarly, most Wisconsin employers are covered by the Wisconsin Fair Employment Act (WFEA), which prohibits all employers from “refusing to reasonably accommodate an employee’s or prospective employee’s disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer’s program, enterprise or business.”

Most employers already provide paid and unpaid leave to employees through policy and/or practice. Employees with disabilities are entitled to equal access to such leave. However, the employer may also need to provide additional unpaid leave to an employee with a disability as a reasonable accommodation.

When an employee with a disability requests leave as a reasonable accommodation or otherwise indicates a need for leave due to a condition that may constitute a disability, the employer should first determine whether the employee is entitled to leave pursuant to its policy and/or practice. If leave is not available, the employer should engage the employee in an “interactive process” to solicit more information regarding the reason(s) for the requested leave, whether the requested leave would be continuous or intermittent, and how much time is needed. This information will assist the employer in determining whether the employee qualifies for the leave requested under the ADA and also whether the requested leave would cause undue hardship to the employer.

It is important for an employer to maintain an open line of communication with an employee during the interactive process. Employers should refrain from rigidly applying maximum leave policies, as additional unpaid leave may constitute a reasonable accommodation.

For advice and counsel concerning leave as reasonable accommodation under the ADA and/or WFEA, contact Jenna Rousseau at (844) 833-0828.

Jenna Rousseau is an attorney with Strang, Patteson, Renning, Lewis & Lacy, s.c. This article is intended to provide information only, not legal advice. For advice regarding a particular labor or employment situation, please contact the attorneys at Strang, Patteson, Renning, Lewis & Lacy, s.c.