Don’t Forget Leaves of Absence as ADA Accommodation

By Jon Hyman

Jul. 9, 2015

Suppose an employee tells you that she needs time off to undergo surgery for her recently diagnosed breast cancer. Do you? 

  1. Deny the request (and fire the employee), either because you are too small to be FMLA-covered or the employee has not worked enough to be FMLA-eligible; or
  2. Consider, and likely grant, the request as a reasonable accommodation under the ADA?

If you chose option one, congratulations, you just bought yourself an EEOC lawsuit.

The EEOC’s press release fills in the details.

Joan O’Donnell successfully performed her job duties as a regional manager at the company’s BWI Dunkin’ Donuts locations. After O’Donnell was diagnosed with breast cancer, she e-mailed the owner to explain that she was diagnosed with breast cancer and would need surgery. She also talked to her supervisor about her diagnosis and requested four to eight weeks of unpaid leave for surgery, chemotherapy, and radiation treatment. The EEOC charged that Dunkin’ Donuts refused to provide a reasonable accommodation and instead abruptly discharged O’Donnell because of her disability just three days before the start of her medical leave.

I’ve written before about the need to put the human back into human resources. The EEOC agrees with me: “Granting an employee unpaid leave for needed medical treatment is not only the compassionate thing to do, it is required by federal law unless the employer can show it would pose an undue hardship.” Case closed.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at

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