Employers' Duties When Injury Affects Ability to Perform Discussed

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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.

Concept Imported Into Rehab Act

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, Feldblum said.

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).

Employee Must Initiate Process

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.

'Consider' The Request

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 said.

Review Job Descriptions

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 said.

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 said.

Misconduct Not Excused

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 said.

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, Allen said.

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.

Termination May Violate the Act

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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