The Equal Employment Opportunity Commission June 8 heard varied views on the Americans with Disabilities Act's requirements for leave as a reasonable accommodation and on how EEOC could offer more specific guidance to employers, workers with disabilities, and others wrestling with uncertainties regarding their legal obligations and protections.
EEOC Commissioner Victoria Lipnic (R) said that despite EEOC's issuance of many guidance documents over the years, employers repeatedly ask her “how much leave, or extended leave, is enough” to satisfy the ADA. “In all likelihood, there are no blanket answers to these questions,” said Lipnic, a former assistant secretary of labor during the Bush administration. “This issue is in the front of employers' minds, especially since the enactment of the ADA Amendments Act, which will ensure that more individuals are covered by the ADA.”
Two Large Settlements
The meeting particularly focused on employer leave policies that require individuals with disabilities to return to work once their leave is exhausted, or else lose their jobs. Among the issues raised under the ADA is whether employers must maintain flexible leave policies that allow for extensions of leave based on individual circumstances and who is responsible for reinitiating the “interactive process” regarding possible accommodations when an approved leave ends and an employee is not ready or able to return to work.
Within the past two years, EEOC has settled ADA class actions against Sears Roebuck & Co. for $6.2 million (27 HRR 1046, 10/5/09) and the Supervalu supermarket chain for $3.2 million (29 HRR 9, 1/10/11), resolving claims that the employers violated the ADA by allegedly requiring automatic termination of disabled workers who were not ready to return when their approved leaves expired.
The consent decrees also required those employers to notify employees on disability leaves that their leave is about to expire and inform those workers about their options to request a leave extension or transfers to jobs consistent with their medical restrictions.
Lipnic said many ADA-covered employers “simply do not know” about EEOC's views regarding these issues. “For those employers familiar with the Sears and Supervalu cases, the terms of the consent decrees and the requirements placed on those employers may go beyond what is required by the ADA,” she said. “Further, EEOC may actually be incentivizing employers to do away with these generous leave policies, having the counterintuitive effect of reducing leave to individuals with disabilities.”
EEOC member Stuart Ishimaru (D) said leave is a “crucial accommodation” because it enables persons with disabilities to stay in the workforce while dealing with medical issues. “The ability to take leave and know that you have a job to return to is at the heart of the ADA,” he said. EEOC's role is to “issue clear and comprehensive guidance” rather than react to each lower federal court decision, Ishimaru said.
Commissioner Constance Barker (R) said balancing the ADA's requirements to extend leave as a reasonable accommodation with an employer's imperative to keep the business running is particularly difficult for small businesses.
Commissioner Chai Feldblum (D) noted the distinctions between the ADA and the Family and Medical Leave Act, which covers employers with 50 or more employees and allows up to 12 weeks of unpaid leave for eligible, full-time employees. In contrast, the ADA requires a “fact-intensive analysis” to determine “how much job-protected leave” an employer must provide as a reasonable accommodation in individual cases, Feldblum said.
EEOC's Positions Outlined
Christopher Kuczynski, EEOC assistant legal counsel, said EEOC's 1991 interpretive regulations under the ADA, the commission's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA (revised in 2002), and various EEOC technical assistance documents are the main sources for EEOC's views on leave as a reasonable accommodation.
Kuczynski said EEOC has never held that a “uniformly applied” leave policy, including a “no-fault” attendance policy, violates the ADA on its face. EEOC takes the view that employees on leave are entitled to pay only to the extent they have accrued paid leave, but that employers “may not penalize” workers who take leave as a reasonable accommodation. EEOC believes the ADA requires that absent undue hardship, employees on leave must be returned to their original jobs, Kuczynski said.
EEOC's documents specify that under the ADA, employers may need to provide leave in excess of that required by the FMLA, Kuczynski said. When an employee is entitled to leave under both laws, EEOC says the statute granting greater protection should apply, he added.
EEOC's technical assistance documents under the ADA state that an employer may have to provide leave as an accommodation even when there is no fixed date of return, but those documents do not require an employer to provide leave when there is “no possibility” the disabled employee can return to work, Kuczynski said.
John Hendrickson, EEOC regional attorney in Chicago, said some of the lessons of the Sears and Supervalu cases are that an “inflexible period” of disability leave is insufficient to satisfy the ADA; “appropriate leave” under the ADA requires an individualized assessment even when the employer appears to provide generous leave; separating an employer's leave administration function (sometimes outsourced to a third-party administrator) from its ADA decisionmaker is “very risky” for employers; “clear lines of communication” between employers and employees regarding reasonable accommodation are critical; and EEOC has a “major role” in litigating these ADA systemic cases because of the resources required.
Emphasis on Communication
Responding to EEOC commissioners' questions, Hendrickson and Kuczynski both emphasized the importance of effective communication between employers and workers on disability leave, particularly as those leaves are expiring. Hendrickson said that in the Sears and Supervalu cases, the employers automatically terminated those who exhausted their leaves and “the concept of ‘interactive process' seems to have gone out the window.”
No company representative “ever called the employee” or “discussed how to deal with an individual situation,” Hendrickson said. “It's a mystery to me why so many employers don't seem to get it. You've got to have an interactive process,” he said.
Kuczynski concurred that when it comes to employee leave granted for a fixed period, “communication between the employer and the employee is paramount.” Kuczynski said employers have a right to request that an employee provide medical information to support extended leave, as well as evidence of the employee's ability to return to work at some future date. “So it's very important on both sides to engage in this interactive process,” he said.
Commissioner Barker asked whether the problem of “inflexible leave policies” might occur more often with larger corporations, since small employers lack the luxury of putting employees on leave and “forgetting them” or of separating their leave administration and ADA compliance functions.
Hendrickson replied that while he lacked a definitive answer, the outsourcing of personnel matters “is a big deal” with employers large and small. “As we separate [human resources] functions from the employer, I think that the risk increases” of violating the ADA, Hendrickson said. “I don't know if that's a function of size,” added.
Potential Burdens on Employers
Ellen McLaughlin, a partner with Seyfarth Shaw in Chicago, said most employers are aware that unpaid leave is a form of reasonable accommodation under the ADA. Most employers also understand that if an employee asks for an extension of leave, then the employer must engage in an “interactive process,” McLaughlin said.
She added, however, that “what surprises employers” is that EEOC enforcement of the ADA “seems to require a process that is not only burdensome, but is not legally required.” For example, McLaughlin said elements of the Sears consent decree—requiring employers to provide written notice to workers before their leave is to expire and to set up a company team to assess medical information regarding possible extended leave even absent a request from the employee—appear to be unsupported by the ADA.
McLaughlin emphasized that under the ADA, “it is the employee's responsibility to ask for a reasonable accommodation” and that “there is no reason for employers to think they have to notify” workers that the end of their approved leaves is near.
“We do not think employers are required to create a whole new structure” to track employees on disability leave, McLaughlin said. “This may be a ‘best practice' issue” but it is not something employers should be required to do under the ADA, she testified. “The obligation to ask for an accommodation should remain squarely with the employee,” she said.
McLaughlin defended “no-fault” attendance policies, saying it is “very difficult” for even large employers to deal with unplanned employee absences. In many cases, an absent employee's work either does not get done or is performed in a less productive manner, she said.
EEOC should revisit the issue of attendance as an “essential job function,” McLaughlin said, adding that she thinks it is essential. She also “strongly encouraged” EEOC to collect in one place its guidances relating to leave under the ADA.
As the meeting ended, Ishimaru suggested that EEOC could aim to update its ADA guidances regarding leave by the end of this summer, but other commissioners indicated they felt that was overly optimistic.
By Kevin P. McGowan
The witnesses' written testimony can be accessed on EEOC's website at http://www.eeoc.gov/eeoc/meetings/6-8-11/index.cfm.