by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation
May 10, 2016
Yesterday, the EEOC released a Resource Document titled Employer-Provided Leave and the Americans with Disabilities Act. We in the employer community have been awaiting EEOC guidance on this hot topic since June 2011, when the Commission held a public hearing with testimony from representatives of the EEOC, and employer and employee communities, to discuss leave of absence as an ADA accommodation. An EEOC Guidance on the topic was expected in April 2012 but was withheld from release at the last minute, probably because of a lack of consensus on key points among the EEOC Commissioners.
By the EEOC’s own admission, the Resource does not break any new ground. Rather, it pulls together in one place existing EEOC interpretations and Enforcement Guidance. Regardless of its title, you can be sure that if you have an inflexible leave policy that provides for a set period of leave which results in termination of employment or other adverse action for employees who exhaust that leave, the EEOC is likely to conclude this to be a violation of the ADA. In today’s blog post, we will highlight the major points in the Resource Document; the entire document is here.
The question of reasonableness is barely acknowledged. In last week’s blog post, we discussed our informal meeting with EEOC Commissioners Feldblum and Lipnic, in which they expressed their opinion that leaves of nearly any duration must be provided by employers unless they can demonstrate an undue hardship. True to this sentiment, the Resource Document is strangely dismissive of the threshold questions all of us in the employer community deal with, namely: is the accommodation reasonable and effective to enable the employee to return to work and perform the essential functions of his position? Rather, the question of reasonableness is relegated to a mere footnote (#5) in which the EEOC states that the 20 examples provided in the document each assume that the requested leave is reasonable.
Key Topics Addressed. Contact with employee’s provider.The Resource Document highlights an important tool employers have as they engage in the interactive process and assess employee accommodation requests: the ability to engage with the employee’s provider (with a proper authorization from the employee). Specifically, the EEOC reminds employers that they can seek additional information to determine:
- The specific reasons the employee needs leave;
- Whether the leave will be continuous or intermittent; and
- When the need for leave will end.
Maximum Leave and 100% healed policies. The EEOC has long targeted employers with policies that cap the amount of leave an employee can take or that require an employee to be 100% healed before returning to work. The Resource Document confirms the agency’s position that these policies violate the ADA because they do not allow for individualized assessment of the employee and her position. Employers beware – this is “low hanging fruit” in the EEOC’s opinion and its lawsuits have resulted in multi-million dollar consent decrees against employers.
Reassignment as an accommodation. In some cases the result of the interactive process is a conclusion that the employee is not “qualified” for his position (i.e., his disability prevents him from performing one or more essential functions of his job and there is no effective, reasonable accommodation to enable him to do so). The Resource Document reminds employers that reassignment is the accommodation of last resort. The EEOC restates its position that if the employee is qualified, he or she must be reassigned in a vacant position. Two reassignment issues are not well understood by employers: (1) that the employer has the obligation to search for an appropriate vacant position, and (2) the employee does not have to compete or be the best qualified for the vacant position – if he is qualified and can perform the essential function with or without an accommodation, the employee gets the position.
Undue hardship. The Resource Document concludes with a discussion of the factors employers can consider in its undue hardship analysis. However, the only leave of absence that the EEOC concedes would be an undue hardship is “indefinite leave” – meaning that “an employee cannot say whether or when she will be able to return to work at all.” Since the vast majority of requests for a leave of absence are far from this straightforward instance, our recommendation is that employers consider undue hardship only after a thorough, thoughtful analysis of whether a leave of absence is a reasonable and effective accommodation.
Pings for Employers. First, review your leave policies! Ensure you don’t have any inflexible leave policies that make you fodder for an EEOC investigation and lawsuit. Scrub your policies for leave caps or requirements for the employee to be 100% healed or at maximum medical improvement.
If you have a solid business reason for such a policy, ensure that it includes notice to employees that if an employee needs an ADA accommodation (additional leave or a workplace accommodation to enable return to work) the employee should contact the employer’s human resources department.
- Get the employee’s health care provider involved. Even the EEOC concedes that employers have the right to obtain sufficient medical information to understand the employee’s need for leave as an accommodation. Without the employee’s consent, the employer can’t directly approach that provider, but we at Matrix recommend preparing a communication (for the employee to bring to the doctor) with concise questions. Depending on the specific circumstances, that communication can include: (1) clarification or elaboration on anything unclear in the documentation the employee obtained from the doctor to support his request for leave; (2) specific questions on the amount of leave needed; (3) the reason that leave will be effective to enable the employee to return to work; and (4) whether there are any accommodations, other than leave, that the doctor believes would be effective.
- Treat each extension request as a new request. After approval of an initial request for a leave of absence as an accommodation, treat any request for an extension as a new request and a new opportunity to engage with the employee’s provider. At Matrix we ask questions such as what has changed with respect to the employee’s condition, why this extension will enable the employee’s return, and whether there are any accommodations other than leave that might be effective.
- Near the end of an approved leave, ask the employee if he or she is returning, or needs an accommodation. In any letters you, or your TPA, use to notify an employee of the expiration of an approved leave, there should be language asking the employee to communicate whether or not if she will be able to return to work at the end of leave, or if she needs an (additional) accommodation and the method and timing to make that request.
- Document that you have done things right! The Resource Document is clear that leave as an accommodation is an important, strategic initiative of the EEOC. Employers must engage in an interactive process, use all the tools the ADA provides, conduct an individualized analysis, and document, document, document.
MATRIX CAN HELP! Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process. We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, manage the interactive process, assist in identifying reasonable accommodations, document the process, and more. Contact Matrix at 1-800-866-2301 to learn more about these services.