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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: Benefits and Privileges of Employment

December 9, 2015

By e-mail and first class mail

Ms. Natalie Wadzinski
Human Resources Division
One Ashburton Place, Room 301
Boston, MA 02108

Dear Ms. Wadzinski:

I write on behalf of the Office of Legal Counsel of the U.S. Equal Employment Opportunity Commission (EEOC) in response to your November 20, 2015 request for public comment on proposed regulatory changes to the Extended Illness Leave Bank (EILB), a voluntary program created by Massachusetts General Law Chapter 7, sec. 4P, that helps state employees who are on approved leave for incapacitating illnesses continue their pay following the exhaustion of paid leave.

The EEOC enforces the federal laws that prohibit discrimination against job applicants and employees on the basis of race, color, religion, sex, national origin, age, disability, and genetic information, as well as retaliation for protected EEO activity.(1) For the reasons explained below, I believe your proposed regulatory language should be altered slightly to avoid violation of the federal Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., as amended.

Proposed Amendments

Among the proposed amendments to the EILB regulations, having the "acceptable attendance record" required for enrollment in the paid leave program will be defined as follows:

  1.  An employee has an "Acceptable Attendance Record" when an Agency has reviewed the employee's total sick leave usage and has determined that all of the employee's absences due to sickness were sufficiently documented where appropriate and that overall attendance was satisfactory.

Employees interested in joining EILB may not have a history of:

  •  tardiness
  •  leaving early
  •  excessive break time
  •  high sick leave utilization that was not otherwise protected by the FMLA
  •  pattern of absences before or after a holiday
  •  warnings or other discipline for poor attendance, sick leave misuse or abuse.

In addition, among other criteria for withdrawal of time from the bank, the proposed regulatory changes would require that EILB members must:

  1. Have an approved FMLA or FMLA catastrophic leave or if those leaves have been exhausted, other agency-authorized unpaid leave of absence that covers the time period the employee is requesting for EILB withdrawal.

Potential Applicability of the Americans with Disabilities Act (ADA)

Among its various protections, Title I of the ADA prohibits covered employers from engaging in disparate treatment based on disability in the administration of "benefits and privileges of employment," and requires employers to provide reasonable accommodations so that employees with disabilities can enjoy the "benefits and privileges of employment" equal to those enjoyed by similarly-situated employees without disabilities.

Thus, where an employer chooses to provide a benefit, such as a paid leave program for those experiencing extended illness, it may set the criteria for enrolling in the program or withdrawing benefits (such, as here, conditioning withdrawal of a specially-created paid leave benefit on total incapacity to work or unavailability of other paid leave through workers' compensation or short and long term disability programs). However, an employer may not condition access to the program on whether an employee has requested or received reasonable accommodation for a disability under the ADA.

As presently worded, the proposed regulatory changes would appear potentially to disqualify employees with disabilities from enrollment in the EILB program or withdrawal of time from the bank if they had been granted ADA accommodations such as schedule changes (e.g., early departure or additional break times), use of accrued paid leave, or the grant of unpaid leave when necessitated by an employee's disability. An employer may not penalize an employee for leave or other accommodations granted under the ADA. "To do so would be retaliation for the employee's use of a reasonable accommodation to which s/he is entitled under the law. Moreover, such punishment would make the leave an ineffective accommodation, thus making an employer liable for failing to provide a reasonable accommodation." EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship, question 19,

For this reason, I recommend that language be added to both the eligibility criteria and the withdrawal conditions providing a caveat for schedule changes, breaks, leave, or other accommodations protected by the ADA, similar to the caveat already included in your draft for FMLA-protected absences.

Thank you for your consideration of these comments. If you would like additional information or to discuss this matter further, please feel free to contact me (202) 663-4609.


Peggy R. Mastroianni
Legal Counsel


1 See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; Section 501 of the Rehabilitation Act of 1973, as amended (Rehabilitation Act), 29 U.S.C. § 791; Titles I and V of the Americans with Disabilities Act of 1990, as amended (ADA), 42 U.S.C. § 12101 et seq.; the Equal Pay Act of 1963, 29 U.S.C. § 206(d); and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. The EEOC also coordinates and leads the federal government's efforts to eradicate unlawful workplace discrimination. Exec. Order No. 12,067, 43 Fed. Reg. 28,967 (June 30, 1978).

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