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.

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