ATLANTA--The Americans with Disabilities Act is an “inadvertent leave law” so
employers considering workers' leave requests must be aware that a qualified
employee with a disability may be entitled to leave as a reasonable
accommodation after exhausting Family and Medical Leave Act leave, EEOC
Commissioner Chai Feldblum told an American Bar Association meeting Nov. 2.
Speaking at the ABA Section of Labor and Employment Law's annual conference,
Feldblum said “reasonable accommodation” originally developed under Title VII of
the 1964 Civil Rights Act when a job requirement conflicted with an employee's
religious beliefs. The U.S. Supreme Court ruled an employer must reasonably
accommodate an employee's religious beliefs absent “undue hardship” to the
employer, but the court set the undue hardship bar relatively low in the
religious discrimination context, Feldblum said.
Congress imported the reasonable accommodation concept into the
Rehabilitation Act of 1973, providing employers must try to accommodate
otherwise qualified workers with handicaps. Neither the Rehabilitation Act nor
the Americans with Disabilities Act, passed in 1990 and amended in 2008, defines
reasonable accommodation, Feldblum said. Instead, the ADA provides examples of
reasonable accommodation, including leave and reassignment to a vacant position,
The ADA defines “undue hardship” as “significant difficulty or expense” to
the employer, which is a more demanding standard than in religious
discrimination cases, Feldblum said.
Reasonable accommodation is meant to “rectify the tilt” caused by an
individual worker's religious belief or disability that might render an
otherwise qualified employee unequal in the workplace, Feldblum said. But when a
workplace's “background norm” includes “a significant amount of leave” provided
by the employer, Feldblum said, the model begins to break down.
Leave policies work best with “clear, defined lines” but under the ADA, no
clear lines exist because employers must individually assess whether leave is a
reasonable accommodation for an employee with a disability who has exhausted
FMLA or employer-provided leave, she said.
EEOC currently is litigating ADA cases challenging employers' leave policies,
but Feldblum said Congress ultimately may need to address conflicts between the
ADA, FMLA, and employers' leave policies because “it is not coherent now.”
During the past two years, EEOC has weighed whether to issue enforcement
guidance on leave as an ADA reasonable accommodation but it has not yet done so
(62 BTM 185, 6/14/11; 63 BTM 141, 5/1/12; 63 BTM 211, 7/3/12).
Feldblum participated in a panel discussion on the ADA-required “interactive
process” when an employee requests reasonable accommodation. Speakers used a
hypothetical case involving “Larry Jones,” a union-represented packaging manager
whose job description included the ability to lift 70 pounds, but who actually
was rarely required to lift anything. After an off-the-job injury, Jones
underwent back surgery and doctors recommended lifting restrictions that
affected his ability to return to his job.
Jones exhausted his FMLA leave, but could not return to his job because of
the no-lifting restriction. Jones requested his employer provide him a
light-duty job or otherwise accommodate his back disability.
The employer must engage in the ADA interactive process after Jones exhausted
his FMLA leave, said Bobbie Fox, an in-house counsel for SCF Arizona, a workers'
compensation insurance firm in Phoenix.
Fox said Jones's employer might want to reexamine the “essential functions”
in Jones's job description, since Jones spent most of his working time
supervising others rather than lifting packages. Feldblum said it would be
“completely legitimate” for the employer to ask Jones to provide medical
information from his doctors about his back condition.
Daniel Kohrman, a senior attorney with AARP Foundation Litigation in
Washington, D.C., said courts have ruled the employee must initiate the
interactive process by indicating a need for accommodation, although no
particular words are needed to start the process.
Courts also say an employer must do more than just say no when an employee
suggests an accommodation, Kohrman said. The ADA requires an employer at least
to “consider” the request and once it is denied, an employee's obligation is to
make additional proposals, Kohrman said.
It is “meaningless” for an employee to argue the employer acted in bad faith
unless the employee can show a reasonable accommodation exists that could have
been granted, Kohrman said.
Jones's light duty suggestion might not be a reasonable accommodation,
Kohrman said, particularly if the employer does not offer light duty jobs or if
it reserves such positions for employees injured on the job.
Jones's union should “absolutely be part of this process” of discussing
possible accommodations with the employer, said Wynter Allen of the Alden Legal
Group in Washington, D.C., who represents unions.
For example, the union could bargain with the employer if the latter's need
for Jones's medical information conflicted with privacy interests, Allen said. A
union also can remind the employer what the interactive process entails, Allen
Feldblum urged employers to ensure their job descriptions match what an
employee actually does at work. She said an employer can use a reasonable
accommodation request to discern how a worker is spending his time and a union
can help provide those answers. Accurate job descriptions help the employer
“manage better in the first place” and help in dealing with accommodation
requests, Feldblum said.
Job descriptions reflecting an employee's actual duties are particularly
important in deciding whether attendance is an “essential function,” Feldblum
said. Regular and predictable attendance in the workplace can be a
“qualification standard,” depending on the job, she said. For example, an
employer could reasonably require that attendance standard for a secretary or
receptionist, she said.
Fox said employers should not include regular attendance as an “essential
function” in every job description. That “dilutes the employer's argument”
against a proposed accommodation and an employer should save attendance as an
essential function for jobs that actually cannot be performed off-site, Fox
Kohrman said he is struck by the extent to which courts in ADA cases “hold
employers to what they say” their policies are. He added, however, courts are
“very generous” to employers in the sense that if an employer does “a good deed”
by making a policy exception for a particular employee, courts will not deem the
policy waived. “Realism gets rewarded” in the courts, Kohrman said.
In the hypothetical, Jones's company grants him a light duty job filling out
forms on a computer and acting as an interoffice messenger.
Kohrman said if the company's light duty positions are not just for persons
with disabilities, then it is not clear providing light duty is an ADA
accommodation. The courts are “pretty clear” an employer has no obligation to
provide temporary employment that excuses the worker from doing his job's
essential functions, Kohrman said.
Feldblum said the employer discussing with Jones how he could stay in his
current job with accommodations “would be the best option.” But if Jones's
doctors say no lifting at all is permitted, Jones may no longer be qualified for
that position, she said. The ADA presumes that “ultimately, the job needs to get
done,” she said.
Fox remarked that employers offering light duty usually link it to employees
receiving workers' compensation. Employers fear it might change the “essential
functions of the job” if light duty were extended to other employees, she
In the hypothetical, Jones is caught dozing on his light duty job because of
side effects of his pain medication. The company gives Jones a written reprimand
and warns he can be terminated for a repeat violation.
Feldblum remarked “one of the hardest issues” under the ADA is whether an
employer can discipline an employee for misconduct related to a disability. When
EEOC approved its ADA Amendments Act regulations (62 BTM 99, 3/29/11),
then-Commissioner Stuart Ishimaru opposed the new rules in part because he
believed EEOC could take a “stronger stance” on the conduct issue, Feldblum
But Feldblum said she did not believe Congress intended to prevent employers
from disciplining employees who violate work rules because of a disability's
effects. Instead, under EEOC's regulations interpreting the act, employers do
not have to excuse workplace misconduct and it was “completely legitimate” for
Jones's employer to reprimand him, Feldblum said.
The case might be different if Jones during the interactive process had
notified the employer about the potential side effects of his medication,
Feldblum said. “Timing is important,” she said.
When Jones grieves the reprimand, the union should review and handle his
complaint no differently from a grievance by any other employee, said Allen, the
union attorney. The union must be mindful of its duty of fair representation,
In the hypothetical, Jones's back pain persists and he asks to perform his
light duty office work from home through email and other electronic means. The
company refuses, saying it does not have a telecommuting policy.
Feldblum commented “it's a really bad idea” for a company to respond it lacks
a telecommuting policy. Rather, she advised employers to “think ahead of time”
about what jobs could be performed remotely. Even absent a policy, Feldblum said
the company arguably created a job for Jones in which telecommuting was
possible, given his main duty was entering data into a computer and his
interoffice messenger duties were secondary.
Fox said “intermittent attendance issues” are “one of the toughest things”
for employers to handle. She said if an employee is absent because of
disability, an employer cannot discipline for that absence consistent with the
ADA. But if an employee discloses the disability only in response to discipline
imposed for misconduct, then the employer can leave that disciplinary notice in
the employee's record, Fox said.
Kohrman emphasized the ADA requires employers, absent undue hardship, to find
a reasonable accommodation permitting the employee to perform the job. An
employer's assertion it has “no policy” on telecommuting is “not some kind of
absolute exception” to the ADA's requirement, he said.
Rather, courts are “very clear” that whether telecommuting is a reasonable
accommodation will be based on what the job requires, Kohrman said.
In the hypothetical, Jones's doctor ultimately recommended Jones not work for
at least six months because of his persistent pain. The company terminates him,
citing his exhaustion of available leave and his inability to perform the
“essential functions” of his job.
Feldblum said employers need to make sure “you don't have any of those types
of letters,” that is, those informing employees they have exhausted FMLA leave
and therefore are fired. She said the ADA is an “inadvertent leave law” that
“does not line up well with the concept of leave,” but “that's the law.”
Under the ADA, Jones gets to stay out on job-protected leave unless the
employer can demonstrate “undue hardship” in holding Jones's job open, Feldblum
said. The undue hardship inquiry is not just financial, but turns on logistical
and operational considerations, she said. The key issue is “what's the impact on
the job” of having the employee out indefinitely, Feldblum said.
By Kevin P. McGowan
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