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EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA/Disparate treatment/reasonable accommodation

January 23, 2004

Dear :

This responds to your recent letter to the Equal Employment Opportunity Commission (EEOC) inquiring about your rights under the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA). Specifically, you ask whether you have a right to be granted a reasonable accommodation of paid, "unchargeable" leave in order to receive treatment for severe arthritis. You also mention that you have received FMLA certification for your condition. Because it is unclear whether you believe that: 1) you are being treating differently than other employees with respect to leave; 2) you are entitled to paid leave as a reasonable accommodation; and/or, 3) you are being denied your rights under the FMLA, this letter briefly addresses each of these issues.

Disparate Treatment

Under Title I of the ADA, it is unlawful for an employer to discriminate against an individual with a disability in regard to any term, condition, or privilege of employment, including leaves of absence, sick leave, or any other leave. This means that an employer must provide the same amount of paid or unpaid leave to employees with disabilities as it provides to similarly situated employees and must allow all employees to use such leave for the purposes for which it was intended. For example, if an employer allows a person without a disability to use accrued sick leave to obtain medical treatment, it also must allow an individual with a disability to use sick leave for the same purpose. The ADA, however, does not require an employer to provide leave to an individual with a disability beyond that which is provided to similarly situated employees unless leave is being provided as a reasonable accommodation.

Reasonable Accommodation

Title I of the ADA requires employers to provide reasonable accommodations to qualified individuals with disabilities unless to do so would cause an undue hardship (i.e., significant difficulty or expense). Generally, a person with a disability must inform the employer that an accommodation is needed. Employers should treat a request for leave as a request for a reasonable accommodation when an employee is asking for an adjustment or change to a leave policy for reasons related to disability. For example, when an employee with a disability is asking for more leave than generally is provided (e.g., six weeks of sick leave instead of the four weeks usually provided for treatment and recuperation related to a medical condition), or is asking to use leave for some other purpose related to his or her disability (e.g., to obtain repairs on a wheelchair or to receive training), this is a request for reasonable accommodation. Before providing the accommodation, however, an employer is entitled to know that the individual making the request has a covered disability (i.e., that the person: (1) has a physical or mental impairment that substantially limits a major life activity; (2) has a record of a substantially limiting impairment; or, (3) is regarded as having a substantially limiting impairment). An employee who needs leave for reasons related to his or her disability is entitled to such leave if the leave will not cause an undue hardship. Although an employer does not have to provide paid leave beyond that which is provided to similarly situated employees, it should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave. An employer also may "charge" the leave taken as sick, annual, or unpaid leave in the same manner as it does for similarly situated employees but may not penalize an employee with a disability for work missed during leave taken as a reasonable accommodation. (See EEOC's Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (October 17, 2002)).


When an employee is requesting leave for a medical condition, an employer should determine the employee's rights under both the ADA and the FMLA and take the appropriate action. For example, if an employer determines that an employee is not entitled to a reasonable accommodation because he or she does not have a covered disability, it should determine whether the employee meets the requirements for leave under the FMLA. If the employee is entitled to leave under the FMLA, an employer must allow the individual to use any accrued paid leave first and then grant unpaid leave. See EEOC Fact Sheet on the FMLA, the ADA, and Title VII of the Civil Rights Act of 1964 and the Enforcement Guidance on Reasonable Accommodation. (The fact sheet and guidance can be found on our website,

Finally, if you are interested in filing a charge of discrimination under Title I of the ADA, you should contact the EEOC's Chicago District Office at the following address and phone number:

500 West Madison Street
Suite 2800
Chicago, Illinois 60661

(312) 353-2713
(312) 353-4041 (fax)

If you are interested in filing a complaint concerning the FMLA, you will need to contact the nearest Department of Labor (DOL), District Office. You can visit DOL's website at to locate an office near you.

This has been an informal discussion of the issues you raised and does not constitute an official opinion of the Equal Employment Opportunity Commission.


Joyce Walker-Jones, Acting Director
ADA Policy Division

This page was last modified on April 27, 2007.