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Under the ADA can the frequency of leaves be a factor in the QID status?


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Question:

We considered Sharika not to be a Qualified Individual with a Disability (QID) once she started requesting unpredictable intermittent leave. We understand if the need for ADA leave is granted for predictable scheduled medical appointments and/or treatment or even a short term reduced work schedule (once FMLA is exhausted, if eligible). Because the request is for predictable leave, and notice will be given in accordance with our SOP if the accommodation is allowed, our procedure would note the difference and consider predictable leave versus unpredictable leave when going through the interactive process. However, while we engage in the interactive process for such requests, we want to make sure we don’t overlook anything. Could the frequency of the needed anticipated leave be a determining factor when completing an Undue Hardship analysis?

Answer:

An employee who is requesting accommodation on a frequent basis for predictable leave is requesting a different kind of accommodation than an employee who is requesting an accommodation for unpredictable, as needed, intermittent leave. Unpredictable, as needed, intermittent leave may or may not be an undue hardship specifically depending on the nature of the job position, the specialization of the task the employee performs, and as importantly, is the employee able to perform the essential functions of the job, even with the requested periodic leave. The purpose of the Good Faith Interactive Meeting and Undue Hardship Analysis is to determine how the requested accommodation impacts the employee’s ability to perform all of their essential job functions. The Undue Hardship Analysis should consider several factors, including but not limited to:

  • Is the employee the only person trained and capable of doing these job functions? 
  • Would this accommodation(s) affect the business in a negative way?
  • Are there severe consequences to not having the person with the knowledge doing these job functions (the ones that would not be performed when the employee is on leave)?
  • Will the accommodation(s) cause significant disruption to the daily operations of the organization as a result of difficulty or inability to find a qualified temporary replacement?

Make sure you are diligently and objectively documenting your Undue Hardship Analysis. If an employee is requesting an ADA Accommodation that fails to meet the Undue Hardship Analysis test, the accommodation could be considered an unreasonable request. However, the documentation on how you reached this conclusion must be clear and objective.

 

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