You may be asking why didn’t I blog yesterday or so far this week. The answer is I actually spent two hours trying to put a blog together yesterday. The blog was going to cover the Department of Justice Accessibility of Web Information and Services of State and Local Government Entities Supplemental Amended Notice of Proposed Rulemaking (must reading by the way for Title II and III entities), issued on May 8. I tried to do my usual dissection. Two hours later, I realized I was only a third of the way through. I also realized that organizing the blog discussing that proposed rulemaking in a way that wouldn’t overwhelm the reader was going to be impossible. So, I blew the whole thing up. That left me with what to do next. That was solved when the employment law blogosphere lit up when the EEOC issued the publication, “employer-provided leave and the Americans With Disabilities Act.”  Another problem was solved of not having to do an intensive analysis (things are crazy busy for me at the moment), of the EEOC publication because Philip Miles in his blog, which I just added to my blog roll today though I have been subscribing to his blog for some time, collects the blogs of several employment lawyers who have written on this. You can find his blog here. I have absolutely no doubt that Robin Shea in her blog , I am sure she is overwhelmed by bathroom issues:-( , will be weighing in soon as well. So what are my thoughts?

  1. The other bloggers all have great points and I commend you to their blogs for reading.
  2. I really don’t get it. I think it is because maybe I do this all the time, and I just make assumptions that it is obvious when it isn’t. That is, much of what is in here are things that should be already being done. It makes you wonder why they are not. The only thing I can think of is that lawyers don’t realize how complicated the ADA can get, even just within one title. If you are in a complicated area, get help if you’re at all not sure where it is going. I see some lawyers do this, but you would be amazed at how many lawyers don’t do this. For those who are a bit uncertain in the area covered by this publication, the publication will give them some comfort. It will also unfortunately probably act as a crutch, which is my usual problem with guidances. In other words, my problem with guidances in general, is that they often wind up substituting for independent legal judgment and they shouldn’t. For example, see the rest of my comments below.
  3. I am a bit bothered by the EEOC strongly suggesting that the leave request is automatic if an undue hardship is not present. To me, that is a paradigm error. Of course, if no undue hardship is present then a reasonable accommodation is in order. However, what if the interactive process comes up with something besides the leave? The interactive process does not demand that the plaintiff gets what he/she demands. Rather, it demands a meeting of the minds. Ultimately, the choice isn’t even the employee’s so long as the interactive process occurs and the employee gets to the same starting line as a person without a disability.
  4. While it is perfectly okay to reach out to an employee on extended leave to check on their progress, an employer cannot ask the employee to provide periodic updates when it has already granted a leave with a fixed return date.
  5. 100% healed returned to work policies are out, but you already knew that:-)
  6. The EEOC’s view is that should a person no longer be a qualified person with a disability for the particular position they are in, reassignment is mandatory (the employee cannot be required to compete with other applicants for open positions), if there is a vacant position for which he is qualified. As we know, case law is all over the place on this point, and it will be up to the Supreme Court at some point to figure this one out.
  7. There is extended discussion about the interplay between FMLA and the ADA. The discussion struck me as a matter of common sense, but………. I guess not.