ADA, Leaves of Absence and Reasonable Accommodation
Since the enactment of the Americans with Disabilities Act Amendments Act (ADAAA) in 2008, which broadened the definition of “disability,” employers have been faced with an increasing number of employee requests for reasonable accommodation. In addition, disability discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) have increased over 40% and in 2010, disability discrimination charges accounted for one-quarter of all charges filed with the EEOC. So, what does an employer need to know? What should you do if faced with such a request from one of your employees?
Requests for leaves of absence or flexibility in an employee’s work schedule can cause considerable frustration for employers. They can create uncertainty about an employee’s ability to perform the job, and create operational issues for both the employer and other employers. However, denying an employee’s request for a leave or schedule change increases the potential of an ADA claim for failure to accommodate.
The good news is that employers have a number of methods at their disposal to respond to and accommodate an employee’s request for time away from work. For example, employers can permit the use of accrued paid time off benefits, such as paid vacation or sick time. Employers covered by the Family and Medical Leave Act can also designate the absences as FMLA leave, during which the employee may concurrently use paid time off benefits or receive payments pursuant to a workers’ compensation or disability benefits plan. Additionally, employers may provide paid or unpaid leave in accordance with a company policy.
However, employers sometimes mistakenly believe that their accommodation obligation ends once these efforts have been exhausted. In recent years, the EEOC has challenged this belief, and at a very high cost to employers:
In a 2009 federal lawsuit against a retail chain, the EEOC alleged that the policy of terminating employees unable to return to work after a 12-month workers’ compensation leave violated the employer’s obligation to provide a reasonable accommodation. The retailer settled for $6.2 million.
In a class action lawsuit brought against a grocery chain, the EEOC argued that the employer’s policy of terminating employees at the end of a fixed medical leave period rather than return the employees back to work with reasonable accommodations violated the ADA. The supermarket agreed to pay a $3.2 million settlement.
In another class action lawsuit against a nationwide communications company, the EEOC alleged the company’s no-fault attendance policy violated the ADA because employees were “charged” for absences, resulting in discipline and/or discharge, even where the absences were due to ADA-covered disabilities. The EEOC argued that the employer should be required to provide, as a reasonable accommodation,
an exception for such absences under the no-fault policy. The company recently settled the case for a whopping $20 million.
Currently, the EEOC has several pending lawsuits against employers in which it contends that the inflexible leave-of-absence policies fail to reasonably accommodate individuals with disabilities. The issues in these cases are policies where employees are terminated if they are ineligible for FMLA or have exhausted FMLA leave, or have exhausted a fixed maximum leave period.
The EEOC has emphasized that no-fault leave or fixed-leave policies don’t automatically violate the ADA, but employers need to be prepared to adapt these policies in order to provide additional leave as reasonable accommodation. As employers juggle these issues, consider the following advice:
If you have a fixed-leave policy, consider including a statement in the policy that an employee may be eligible for leave as a reasonable accommodation, even if the employee is not eligible for or has exhausted the company-provided leave. A similar statement should be included in your FMLA policy, too.
Train supervisors and managers to notify HR of all leave or time-off requests. This ensures a prompt, individualized and interactive process with all disabled individuals.
If your organization enforces a no-fault attendance policy, be sure it does not “charge,” and thus discipline, an employee for absences that are covered by the FMLA or for conditions that are covered disabilities under the ADA.
Eliminate all statements from leave and attendance policies requiring that an employee must be able to return to full duty, without restrictions, in order to return to work.
Communicate with employees, in advance of their anticipated return-to-work date, to confirm when they are returning and whether they will be requiring any additional accommodations, such as additional leave or restricted duty.
Implementing these policy and administration changes will help your organization more effectively manage employee leave of absence requests and, hopefully, avoid EEOc and court scrutiny.