Editor’s note: The Back to Basics column serves as an accessible way to understand employment law. If you’re new to HR (or just need a little refresher), follow along as the HR Dive team speaks with legal experts, peruses federal guidance and lays out the basics. Feel free to send tips, questions and feedback to [email protected].
Consider the following hypothetical: An employee with a disability is granted leave as an accommodation. They mention, however, that they don’t want to use their accrued paid time off concurrently with that leave. Rather, they want to save it for later in the year.
Must — or should — an employer grant that request?
An appeals court weighs in
The Americans with Disabilities Act and its regulations don’t explicitly grant employees the right to preserve their PTO. And unlike Family and Medical Leave Act regulations, they don’t explicitly allow employers to insist that workers exhaust available PTO either.
Guidance from the U.S. Equal Employment Opportunity Commission says an employer “should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave.”
Recent case law, however, provides additional guidance: The 11th U.S. Circuit Court of Appeals a few weeks ago held that the Rehabilitation Act — the ADA’s public-sector counterpart — doesn’t give employees a right to unpaid leave.
In that lawsuit, Kingsolver v. U.S. Attorney General, the employee requested leave for a disability but wanted to save accrued PTO in case of a family emergency.
Federal law, however, allows employers to choose among any effective accommodation, according to the 11th Circuit, which covers Alabama, Florida and Georgia. And in this instance, whether the needed leave was paid or unpaid had no bearing on its usefulness as an accommodation. The employer’s offer of paid leave was a reasonable one, the appeals court said, and the employee declined to take it.
3 questions to ask yourself
When the disability analysis and interactive process are complete and an employee has been granted leave as an accommodation, HR professionals have a few questions to ask themselves before determining how the leave may interact with any available PTO.
1. Do you have a policy in place?
Employers should first turn to their policies, according to Bryan Starrett, partner at Brooks, Pierce, McLendon, Humphrey & Leonard, LLP.
Most businesses require that workers run any accrued leave concurrently with leave provided by the ADA or Family and Medical Leave Act, he said. “A policy is absolutely critical,” Starrett continued, and it’s a bit of a “glaring omission” if an employer doesn’t have one.
2. Have you already set a precedent?
Absent such a policy, HR professionals may need to consider whether they’ve previously set a precedent in the workplace and already allowed other workers to preserve PTO.
That’s not an ideal situation, Starrett said. There’s risk in treating employees differently, and it can be difficult to remember how similar situations were handled in the past.
3. Are there any other relevant requirements?
Finally, as with many employment law issues, Starrett reminded employers to check for any other requirements to which they may be subject.
An increasing number of states have specific leave law requirements, he said; “Take that extra step when you’re doing the leave analysis.”