Bloomberg BNA decided to pick the brain of Judy Young, an expert on the Americans with Disabilities Act, about the Equal Employment Opportunity Commission’s enforcement of the ADA Amendments Act. In fiscal year 2011, EEOC filed 60 suits under ADAAA, up from nine the previous year.
As assistant director of training and development of the Employment and Disability Institute at Cornell University’s School of Industrial and Labor Relations, Young helps employers comply with the ADA.
She recently reviewed EEOC’s pending docket and resolved cases up to the fall 2011 and identified several trends on ADAAA cases. Young answered our questions via e-mail on the ADAAA, which took effect Jan. 1, 2009 and expanded the definition of disability.
Bloomberg BNA: In examining recent federal court cases on the EEOC’s enforcement of the ADAAA, what trends did you notice?
Young: Non-visible disabilities are cited in the majority of cases, with cancer, epilepsy/seizure disorders, and diabetes topping the list. In most cases, the issue is denial of reasonable accommodations. It will be interesting to see how and when accommodations were requested since in cases of non-visible disabilities the burden of disclosure rests with the applicant/employee with the disability.
Although relatively few cases have been cited under the “regarded as” having a disability definition, it is worth following because it allows more individuals to bring a discrimination charge without consideration of whether the disability or condition in question is a covered disability. It will be interesting to see how courts interpret these complex cases. Also, leave as a reasonable accommodation will continue to be a major concern and we are awaiting further guidance from the EEOC regarding this particular issue.
Bloomberg BNA: How do you see the EEOC’s enforcement of ADAAA, especially leave as reasonable accommodations, as striking a balance between workers’ needs to take extended disability leave or else lose their jobs with an employer’s need to operate a business?
Young: While the EEOC held a public hearing about leave as a reasonable accommodation on June 8, 2011, it still did not come out with final guidance on this issue. Obviously, this is a problematic matter as it requires balancing the needs of persons with disabilities for taking time off for a variety of disability-related issues with the need of employers to have their staff present at the workplace.
However, if litigation related to leave as a reasonable accommodation is indicative of EEOC’s direction, it appears that inflexible leave policies are of primary concern. This stand is directly related to the essence of how reasonable accommodations must be considered as per the ADA: through an interactive, individualized case-by-case assessment.
The two most notable cases litigated by EEOC for inflexible leaves were against Sears Roebuck & Company and Verizon Communications Corp. Sears Roebuck & Company settled their class action suit with the EEOC for $6.2 million despite an arguably generous leave policy that provided that employees could be out for twelve months before being terminated.
The nationwide class disability discrimination lawsuit filed by the EEOC against Verizon stated that the company denied reasonable accommodations to hundreds of employees with disabilities who were disciplined or fired for absences related directly to their disabilities. This lawsuit resulted in a $20 million settlement, the largest disability discrimination settlement in a single lawsuit in EEOC history.
Bloomberg BNA: In anticipation of EEOC’s guidance on leave as reasonable accommodation, what type of practical advice would you offer employers that are now reviewing their return-to-work and leave-request policies?
Young: Obviously, EEOC expects that companies modify their leave policies, absent undue hardship, for employees with disabilities in the context of a reasonable accommodation. Consequently, mishandling leaves as an accommodation has been a relatively frequent basis for EEOC litigation.
Although the ADA does not specify any particular amount of leave as a reasonable accommodation, the EEOC takes the position that some finite period of unpaid leave may be required.
This situation often arises when an employee is out on FMLA [Family Medical Leave Act] leave for a reason that also qualifies as an ADA disability. Employers who automatically terminate employees at the end of FMLA leave without considering whether some amount of additional unpaid leave would allow them to return to work face the possibility of litigation.
A better approach is for employers to contact employees on leave to inquire if they need accommodations to return to work or to see if some additional leave would permit a return and when that may be expected. Communication is always key to maintaining good relationships as long as these are balanced and in good faith. Employees who no longer feel connected to the workplace are more likely to take extended leaves or decide not to return to work at all.
Bloomberg BNA: Do you have any further comments on leave as a reasonable accommodation under ADAAA?
Young: The bottom line is considering each request for leave on an individual basis and maintaining open lines of communication. Looking at return-to-work alternatives is another good strategy: part-time work; light duty assignment for a predictable period of time, which may be revisited periodically; partial or full-time telework; and modifications to the worksite should be discussed and considered.
If you are interested in participating in a Q&A on enforcement actions, legal developments and news related to the Equal Employment Opportunity Commission or the Office of Federal Contract Compliance Programs or have a suggestion for a Q&A topic, contact me at firstname.lastname@example.org.
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