First off, I want to thank everyone who voted for me for the 2016 ABA blog 100. It has been two years in a row for Understanding the ADA, and I am keeping my fingers crossed for a third. Thanks again everyone!

Turning to the topic of the week, about a week or so ago my Google alerts lit up concerning the EEOC Guidance on Employer-Provided Leave and the ADA, which came down on May 9 of 2016. I am not sure why my Google alerts lit up about a week ago considering the guidance came down in May. Nevertheless, I thought it would be useful to go over the guidance. I have been thinking in my head about how to organize this particular blog entry, and I came up with a system where the odd numbers would be the EEOC view and the even numbers would be my thoughts. So, section I is the EEOC view juxtaposed against my comments. While section II, are the takeaways.

I

The Guidance Itself:

  1. EEOC view: just what is a reasonable accommodation? Citing to an appendix to their regulations, the EEOC says that a reasonable accommodation is generally any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.
  2. Comments: Don’t have a problem with the formulation. As I have written numerous times in my book over the years, it helps to think of this in terms of getting the person with a disability to the same starting line as those without disabilities.
  3. EEOC view: employer policy requiring employees on extended leave to be 100% healed or able to work without restrictions may deny some employees reasonable accommodations that would enable them to work.
  4. Comments: absolutely as we discussed in this blog entry, which was one of my very first blog entries.
  5. EEOC view: employers often fail to consider reassignment as an option for employees with disabilities who cannot return to their job following leave.
  6. Comments: for sure. See this blog entry for example.
  7. EEOC view: consider this situation: an employer provides four days of paid sick leave each year to all employees and does not set any condition for use. That is, the employer’s sick leave policy does not require any documentation, and requests for sick leave are routinely granted based upon an employee’s statement that he or she needs the leave. If the employer demands documentation for the use of such leave because the employee is dealing with a disability, then the supervisor’s actions violate the ADA because the employee is being subjected to different conditions for use of sick leave than employees without a disability.
  8. Comments: makes sense.
  9. EEOC view: consider this situation: an employer permits employees to use paid annual leave for any purpose and does not require they explain how they intend to use it. If the employer denies an employee’s use of annual leave due to her disability, then you have an ADA problem. In this situation, the supervisor forced an employee with a disability to use sick leave instead of annual leave to deal with a disability even though he had never denied other employees annual leave based upon the reason for using it.
  10. Comments: makes sense.
  11. EEOC view: employers are entitled to have policies requiring all employees to provide a doctor’s note or other documentation to substantiate the need for leave.
  12. Comments: makes perfect sense as all employees are being treated the same.
  13. EEOC view: an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it so long as an undue hardship is not created even where: the employer does not offer leave as an employee benefits; the employee is not eligible for leave under the employer’s policies; or the employee has exhausted the leave the employer provides as a benefit.
  14. Comments: not a problem but the emphasis of the EEOC is that the employer must consider providing unpaid leave. The specific accommodation could be different depending upon the results of the interactive process.
  15. EEOC view: reasonable accommodation does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy.
  16. Comments: absolutely.
  17. EEOC view: consider this situation: an employer provides 10 days of paid annual leave and four days of paid sick leave each year to employees who have worked for the company less than three years. After three years, employees are eligible for 15 days of paid annual leave and eight days of paid sick leave. An employee who has worked for only two years and has used his 10 days of paid annual leave now requests six days of paid sick leave for treatment for his disability. Under its leave program, the employer must provide the employee with four days of paid sick leave but may refuse to provide paid leave for the two additional days of sick leave because the employee has not worked long enough to earn this benefit. However, the employer has to provide two additional days of unpaid sick leave as a reasonable accommodation unless it can show that providing the two additional days would cause undue hardship.
  18. Comments: no problems with much of this section. However, the section saying that the employer must provide the two additional days of unpaid sick leave as a reasonable accommodation absent a showing of undue hardship overstates the case. Again, the specific accommodation should be the result of the interactive process. Sure, it is absolutely conceivable that such a process would mean granting the two days of unpaid leave, and that it would be unlikely to be an undue hardship considering the rest of the employer’s policy. However, that is not the same as saying the granting of this accommodation is mandatory. We simply don’t know what the interactive process would reveal.
  19. EEOC view: consider this situation: an employer’s leave policy does not cover employees until they have worked for six months. An employee who has worked for only three months requires four weeks of leave for treatment of his disability. Although the employee is ineligible for leave under the employer’s leave policy, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause an undue hardship.
  20. Comments: completely agree that once a person is an employee, the ADA applies regardless of probationary status or regardless of length of tenure of the employee. Also agree that unpaid leave could be a reasonable accommodation and that anything goes with respect to accommodating a person with a disability unless an undue hardship exists. My issue is the statement that providing unpaid leave is mandatory absent an undue hardship. Again, as mentioned above, we simply don’t know what the interactive process would reveal. It is possible that the unpaid leave is the best situation, but maybe the interactive process would reveal something else. Reassignment perhaps?
  21. EEOC view: consider this situation: an employer’s leave policy explicitly prohibits leave during the first six months of employment. An employee who has worked for only three months needs four weeks of leave for treatment of a disability and the employer tells him that if he takes the leave, he will be fired. Although the employee is ineligible for leave under the employee’s leave program, the employer must provide unpaid leave as a reasonable accommodation absent a showing of undue hardship. If the employer could provide unpaid leave without causing an undue hardship, but fires the individual instead, then the employer violates the ADA.
  22. Comments: don’t have a problem except for the mandatory nature of the unpaid leave. Again, we just don’t know what the interactive process would reveal.
  23. EEOC view: When an employee requests leave, or additional leave, for a medical condition, the employer must treat the request as one for reasonable accommodation under the ADA.
  24. Comments: the EEOC is making this argument in a case, Capps v. Mondelez Global LLC, currently on appeal with the Third Circuit. However, as the lower court noted in the opinion hyperlinked above, it isn’t that simple. One has to remember, that to get FMLA leave, it has to be shown that a person cannot do the job’s essential functions. It does not have to be shown that the person can do the essential functions of the job with or without reasonable accommodations. Therefore, making a request for FMLA leave does not, according to the lower court, mean a request for reasonable accommodation is involved since whether a person can do the essential functions of the job with or without reasonable accommodations is not the question under the FMLA. In essence, it is much the same argument used by employers when a person files for Social Security Disability Income and later claims they have a right to proceed under the ADA, which we discussed in this blog entry. That said, as a preventive matter, it would make sense for the employer to use some common sense when a leave request comes through and start the interactive process to see what would work best for both sides.
  25. EEOC view: when seeking information to help figure out where the interactive process will go, much of the focus will go to the following issues: the specific reasons the employee needs the leave; whether the leave will be for a block of time or intermittent; and when the need for leave will end. Also, depending upon the information the employee provides, the employer should consider whether the leave would cause an undue hardship.
  26. Comments: makes sense. I do find the phrasing, “depending on the information the employee provides…,” a bit funny, as the employer should always be keeping in mind whether an undue hardship exists. Keep in mind, undue hardship can either be logistical or financial (see 29 C.F.R. § 1630.2 (p)(2)), and that a showing of financial undue hardship is a very rare occurrence.
  27. EEOC view: an employer may obtain information from the employee’s health care provider (with the employee’s permission of course), in order to confirm or to elaborate upon information that the employee has provided. Employers may also ask the healthcare provider to respond to questions designed to enable the employer to understand the need for leave, the amount and type of leave required, and whether reasonable accommodations other than (or in addition to), leave may be effective for the employee (perhaps resulting in the need for less leave).
  28. Comments: absolutely. However, it doesn’t make a lot of sense for the employer to do any of this unless the employer is having it all evaluated against the essential functions of the job. So, the employer should make sure that the person assessing the employee is given a copy of the essential functions of the job as the job is actually practiced. Once the employer has that information, don’t forget about the interactive process and utilizing the Job Accommodation Network.
  29. EEOC view: consider this situation: an employee with a disability is granted three months of leave by an employer. Near the end of the three month leave, the employee requests an additional 30 days of leave. In this situation, the employer can request information from the employee or the employee’s health care provider about the need for the 30 additional days and the likelihood that the employee will be able to return to work, with or without reasonable accommodation, if the extension is granted. However, an employer that has granted leave with a fixed return date may not ask the employee to provide periodic updates, although it can reach out to an employee on extended leave to check on the employee’s progress.
  30. Comments: not a problem here.
  31. EEOC view: although employers are allowed to have leave policies establishing the maximum amount of leave an employer will provide or permit, they may have to grant leave beyond this amount as a reasonable accommodation to employees requiring it because of his disability unless the employer can show that doing so will cause an undue hardship.
  32. Comments: very confusing. On the one hand, the EEOC is saying that they may have to grant leave beyond the amount of maximum leave, but on the other hand they are saying that it has to be done unless an undue hardship exists. As mentioned above, the EEOC also uses in this guidance the term, “must.” It simply isn’t clear what is going on here. Again, as mentioned above, the granting of leave per the ADA may very well happen, but it is also possible that the interactive process will come up with a different solution. The key is making sure the interactive process occurs.
  33. EEOC view: consider this situation: an employer covered under the FMLA grants employees a maximum of 12 weeks of leave per year. An employee uses the full 12 weeks of FMLA leave to deal with her disability but still needs five additional weeks of leave. The employer must provide the additional leave as a reasonable accommodation unless the employer can show that doing so will cause an undue hardship. However, the employer may consider whether other reasonable accommodations may enable the employee to return to work sooner than the employee anticipate, as long as those accommodations would be consistent with the employee’s medical needs.
  34. Comments: first, this situation happens all the time. Keep in mind, that in granting additional leave, the courts have held that there must be a fixed time. An unfixed time for additional leave is not a reasonable request for a reasonable accommodation. Second, while the EEOC says that leave must be provided, they then turn around and say that it is possible that reasonable accommodations may allow the employee to return to work sooner. The phrasing is very confusing. Again, the key is the interactive process. Third, the phrasing that “the employer may consider whether other reasonable accommodation may enable the employee to return to work sooner than the employee anticipates so long as those accommodations would be consistent with the employee’s medical needs,” is a bit funny because the critical question is not the employee’s medical needs. The question is whether in the employee’s current physical or mental condition, the employee is capable of performing the essential functions of the job with or without reasonable accommodations.
  35. EEOC view: consider this situation: an employer not covered by the FMLA, and its leave policy specifies that an employee is entitled to only four days of unscheduled leave per year. An employee with a disability informs her employer that her disability may cause periodic unplanned absences and that those absences might exceed four days a year. The employer should consider that request a request for reasonable accommodation and the employer should engage with the employee in an interactive process to determine if her disability requires intermittent absences, the likely frequency of the unplanned absences, and if an undue hardship exists.
  36. Comments: in this situation, the critical piece is that the employee is not eligible for FMLA leave. Accordingly, I give it a makes sense rating. If the employee is eligible for FMLA leave, then see ¶24, discussing Capps.
  37. EEOC view: with respect to form letters to communicate with employees nearing the end of leave provided under the employer’s leave program, such form letters should contain information within them that if the employee needs additional unpaid leave as a reasonable accommodation for his disability, the employee should ask for it as soon as possible in order for the employer to consider whether it can grant an extension without causing an undue hardship. If an employer relies on a third-party provider to handle lengthy leave programs, including short and long-term disability leave programs, it should ensure that any automatic form letters generated by these providers comply with the employer’s obligations under the ADA.
  38. Comments: makes sense.
  39. EEOC view: Employers handling request under the regular leave policy separately from request for leave as a reasonable accommodation should ensure that those responsible communicate with one another in order to avoid mishandling the request for accommodation. The employer should ensure that the contractor is instructed to forward to the human resources department in a timely manner any request for additional leave beyond the maximum period granted under the long-term disability program, and it refrain from terminating the employee until the human resources department has the opportunity to engage in an interactive process.
  40. Comments: makes sense. Also, when it comes to short-term and long-term disability policies, you may be facing the same situation alluded to in Capps and in Cleveland v. Policy Management Systems Corp.
  41. EEOC view: Where an employee requests additional leave exceeding an employer’s maximum leave policy, the employer may engage in an interactive process to assess the situation.
  42. Comments: I don’t understand the use of the term, “may.” Seems to me that failure to engage in the interactive process in that situation, would expose the employer to liability. Even if it wouldn’t somehow, engaging in the interactive process in this situation would be good preventive law.
  43. EEOC view: an employer violates the ADA if it claims an employee with a medical restriction poses a safety risk but cannot show that the individual is a direct threat. If an employee’s disability poses a direct threat, an employer must consider whether reasonable accommodation will eliminate or diminish the direct threat.
  44. Comments: makes sense. On this, you might want to check out Chevron U.S.A. Inc. v. Echazabal.
  45. EEOC view: consider this situation: the clerk has been out on medical leave for 16 weeks for surgery in order to address a disability. The employee’s doctor releases him to return to work but with a 20 pound lifting restriction. The employee refuses to allow the employee to return to work with the lifting restriction even though the employee’s essential and marginal functions do not require lifting 20 pounds. The employer’s action violates the ADA because the employee can perform the job and she does not pose a direct threat.
  46. Comments: my problem is with the use of the term, “ The only issue under the ADA is whether the employee can perform the essential functions of the job with or without reasonable accommodations. When it comes to marginal functions, those functions can be written off by the employer or assigned to someone else. If indeed the marginal functions are something that has to be performed for that person’s job, then wouldn’t it be an essential function in the first place? Finally, keep in mind a function can be essential even if it is performed infrequently.
  47. EEOC view: an employer may not prohibit the employee from returning to work solely because she needs reasonable accommodations. Of course, if the requested accommodation would constitute an undue hardship, that is another matter.
  48. Comments: the word “solely,” is bothersome. See this blog entry for example.
  49. EEOC view: When it comes to the interactive process, issues that need to be explored include: the specific accommodations and employee requires; the reason the accommodation or work restriction is needed; the length of time the employee will need reasonable accommodation; possible alternative accommodation that might effectively meet the employee’s disability -related needs; and whether any of the accommodations result in an undue hardship.
  50. Comments: not a problem here. Keep in mind, that temporary disabilities may be a disability under the ADA as discussed in this blog entry.
  51. EEOC view: where a person with a disability is no longer qualified/otherwise qualified for the position they are in, reassignment to a position that they are qualified for is mandatory.
  52. Comments: this view is certainly consistent with the view of the Seventh Circuit, as we discussed above. Even there, a seniority system may be involved as we discussed in this blog entry from last week. Also, mandatory reassignment is not a view that is universal among all the U.S. Court of Appeals. Look for the United States Supreme Court to ultimately step in.
  53. EEOC view: in determining whether leave results in an undue hardship, consider the following: the amount and/or length of leave required; the frequency of the leave; whether there is any flexibility with respect to the days in which leave is taken; whether the need for intermittent leave on specific dates is predictable or unpredictable; the impact of the employee’s absence on coworkers and on whether specific job duties are what constitute being performed in an appropriate and timely manner; and the impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, taking into account for example, the size of the employer.
  54. Comments: I don’t see why these factors have to be exclusive. These factors do make sense when considering whether a logistical undue hardship is present. As I have written numerous times over the years, it makes sense to think of logistical undue hardship in terms of fundamental alteration (I once heard an EEOC Commissioner say the same thing).
  55. EEOC view: when considering whether additional leave constitutes an undue hardship, the employer has the right to consider whether that additional leave on top of the leave already granted taken together constitute an undue hardship.
  56. Comments: makes sense.
  57. EEOC view: Leave as a reasonable accommodation includes the right to return the employee to his or her original position.
  58. Comments: this is interesting. FMLA by statute requires such a return, but the ADA does not. If you don’t, is that an adverse action violating the ADA? Keep in mind, a demotion could be a reasonable accommodation as we discussed in last week’s blog entry. Also, an employer wants to keep in mind what obligations it has to reassign the employee to a vacant position the employee is qualified for, which we have also discussed above. Finally, the key is going to be the interactive process, whether it breaks down, and who is responsible for the breakdown of the interactive process.

II

Takeaways:

  1. Never forget about the interactive process and utilizing the Job Accommodation Network. It is possible that granting a leave is not the only option. After all, it is entirely possible that the employee would rather work with or without reasonable accommodation than go on leave.
  2. Make sure you understand just where your jurisdiction is on whether a person who is no longer qualified per the ADA to do their job must be re-assigned that they are qualified/otherwise qualified for.
  3. This is a guidance by the EEOC and so it is anybody’s guess as to how persuasive the courts will take this. See this blog entry for example. Even so, this guidance contains many excellent preventive law ideas.
  4. For people working in this area, Cleveland, mentioned above, and University of Texas Southwestern Medical Center v. Nassar are mandatory reading.
  5. 100% return to work policies are dead, but the readers of this blog already knew thatJ
  6. Don’t forget about the possibility of direct threat, particularly but not exclusively where public safety is involved.
  7. Marginal functions of the job can either be reassigned or written off. It is also possible that the marginal function is really an essential function. Remember, a function that is done every so often could still be an essential function.
  8. Temporary disabilities may be protected under the ADA.
  9. Whether leave as a reasonable accommodation includes the right to return the employee to his or her original position may or may not be the case. However, a thorough use of the interactive process could go a long way towards protecting the employer from liability in that regards.

Don’t forget about FMLA, but do not impose that scheme on the ADA either.

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