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May 23 — There may be nothing new in the Equal Employment Opportunity Commission's recent resource document on leave requirements under federal disabilities law, but workers and employers should both find needed clarity in the guidance, a pair of EEOC commissioners and others told Bloomberg BNA.
Many employers apparently wish the EEOC had defined as a general rule the “quantum amount of leave” they must provide workers with medical conditions to avoid employee complaints and potential legal claims, Commissioner Victoria A. Lipnic (R) said.
“But I think employers are missing the ‘undue hardship' aspect” the EEOC included in the resource document, she told Bloomberg BNA.
In guidance issued May 9 in a web posting, the EEOC repeatedly states that employers aren't required to provide leave as an accommodation to workers with disabilities when doing so would impose an undue hardship on the business. It also spells out the factors, such as predicted length and frequency of the requested leave, that employers may consider in determining whether an undue hardship exists (89 DLR A-1, 5/9/16).
To comply with the leave-as-an-accommodation requirements of the Americans with Disabilities Act and the similarly interpreted Rehabilitation Act, “employers should get their heads away from” trying to provide workers with a maximum amount of leave beyond which legal claims aren't viable, “and start thinking more in terms of the undue hardship analysis,” Lipnic said.
In its new resource document, the EEOC sets out factors an employer may consider when assessing whether disability-related leave would impose an undue hardship. They are:
Employers may risk violating the ADA and incurring substantial liability by focusing on the wrong things.
Lipnic's colleague, Commissioner Chai Feldblum (D), cited the $8.6 million settlement that Lowe's Cos. just inked with the EEOC to resolve a lawsuit over the company's use of an inflexible “maximum leave” policy, including for workers with disabilities (93 DLR AA-1, 5/13/16).
The EEOC posts resource and similar technical assistance documents, including fact sheets, when feedback from workers and employers signals a need for informal guidance, Feldblum said May 16 during a conference call between Bloomberg BNA and the two commissioners.
The document “doesn't have the force of law” that EEOC regulations and more formal agency guidance may have, but it should serve as a “wake-up call,” management-side attorney Laura Lawless Robertson said. Employers need to re-examine their leave policies to see that they don't draw the attention of the commission, she said.
The new EEOC document touches on various aspects of leave as an ADA accommodation but appears mostly intended to address employers' imposition of inflexible leave rules, including maximum or “no fault” policies and “100 percent healed” requirements, Robertson told Bloomberg BNA May 12. She is with Squire Patton Boggs in Phoenix.
The document has six broad sections: equal access to leave under an employer's leave policy; granting leave as a reasonable accommodation; leave and the interactive process generally; maximum leave policies; return to work and reasonable accommodation (including reassignment); and undue hardship.
The EEOC says the document—which was several years in the making—is meant to collect previously issued regulatory and sub-regulatory information on when and how leave from employment must be provided for disability-related reasons.
In addition, the commission said, some employers seem not to know that they might have to modify policies capping leave when employees need more time off as a reasonable accommodation.
Feldblum noted that EEOC investigators also were part of the group calling for more clarity.
Lipnic cited the various illustrative examples the EEOC sprinkled throughout the document as one way it provides clarity to employees about their rights to leave under the ADA and how to pursue them.
She pointed to the document's first section, which says employees with disabilities must be given access to leave under an employer's leave policy on the same basis as nondisabled workers. This is meant to clarify for workers that an employer's unfair handling of a disability-based leave request may give rise to disparate treatment liability under the ADA, Lipnic said.
Brian East, a senior attorney with Disability Rights Texas, said it's helpful that the EEOC clarified that disabled workers denied equal leave rights have an ADA disparate treatment claim, in addition to a failure-to-accommodate claim.
East told Bloomberg BNA that leave “is probably the most frequently requested and litigated form of reasonable accommodation” in the cases he's seen. While the EEOC doesn't make any new policy pronouncements in the resource document, it does makes clear that the purpose of disability-related leave is to allow a worker the time needed to regain the ability to perform the job's essential functions, he said May 12. This should be helpful to employees in situations where the employer argues that their disability has left them unqualified for jobs, he said.
East also liked that the EEOC said workers with disabilities can't be penalized by their employer for taking leave. That includes assessing a disabled worker's performance on a pro-rata-type basis to account for performance shortfalls attributable to time missed from work while on leave, instead of counting any shortfall against the employee, he said.
Plaintiffs' attorney Glen D. Savits said the EEOC did a good job of elucidating its position on requests for indefinite periods of leave and whether they're protected under the ADA.
“Sometimes doctors think they're doing an employee a favor” by saying the person needs to be off work indefinitely for a disability-related reason, said Savits, who is with Florham Park, N.J.-based Green Savits LLC. But the EEOC says that employers may treat requests for indefinite leave as an undue hardship and refuse accommodation on that basis.
“Doctors should never say a leave period is expected to be indefinite,” he told Bloomberg BNA May 12. Rather, they should give a best estimate on the anticipated return-to-work date, which can always be amended, Savits advised.
Savits noted that some of the confusion regarding leave under the ADA is due to the law's overlap with the Family and Medical Leave Act and similar state medical leave laws. He's seen less informed employers that believe the FMLA is the extent of their employee-leave obligations under federal law, he said.
The resource document does a good job of explaining that this is not the EEOC's view, he said.
According to the EEOC, a sensible extension of leave beyond what's required by federal and state laws can be a reasonable accommodation under the ADA, Savits said.
But David Fram, the director of ADA and equal employment opportunity services with the National Employment Law Institute in New York, said some aspects of the document may add to the confusion.
Moreover, unlike some of the attorneys Bloomberg BNA spoke with, he disagrees with the agency's representation that the document doesn't contain anything new from an EEOC-policy standpoint.
“For example, the document mentions intermittent leave over and over again,” Fram said. While the EEOC may have previously mentioned the concept of intermittent leave in the ADA context, it's never signaled the need to provide FMLA-type intermittent leave to workers with disabilities, he told Bloomberg BNA May 12.
Requiring FMLA-type intermittent leave adds to an employer's burden under the ADA because it can be hard to show how such an accommodation may amount to an undue business hardship, he said.
It also “seems to conflict” with the position most courts have taken that employers can require regular, reliable attendance as an essential function of most jobs, said Fram. “I think there will be virtually no courts” embracing the EEOC's position on intermittent leave under the ADA, he said.
The EEOC's new resource document on employer-provided leave under the ADA provides some valuable information for employers, attorneys told Bloomberg BNA.
Fram said it's “very helpful” that the EEOC strengthened its position on indefinite leave requests, providing that they “pretty much automatically” create an undue business hardship.
East of Disability Rights Texas also pointed to the undue hardship and indefinite leave provisions of the resource document. But he noted as well that the document clarifies that some types of requests may be mistakenly treated as indefinite leave requests.
For example, a leave request providing a range of dates rather than a definitive date for the employee's expected return to work isn't “really a request for indefinite leave,” he said.
It's also good that the EEOC confirms that employers are permitted to request certain medical information from employees seeking leave as an ADA accommodation and that they may ask whether the employee expects to take leave in one block of time or intermittently, Daniel A. Schwartz of Shipman & Goodwin LLP said. That encourages an interactive process, which is good for both employees and employers, he said.
Fram said it helps employers that the document makes clear that the mere existence of a maximum leave policy isn't a per se violation of the ADA. Rather, employers with maximum leave policies only violate the ADA when they refuse to consider deviating from the policy to accommodate a worker with a disability, he said.
The EEOC left employers guessing in its attempt to address the obligation to continue to communicate with disabled workers while they're out on leave, he said. The resource document states that “an employer that has granted leave with a fixed return date may not ask the employee to provide periodic updates, although it may reach out to an employee on extended leave to check on the employee's progress.”
“That doesn't seem to make sense from a practical perspective,” Fram said.
Feldblum acknowledged to Bloomberg BNA that “this is a tough issue” and one that the EEOC struggled to get right. “We spent many hours talking about this point,” she said.
Lipnic said the takeaway for employers should be that they can't keep seeking medical information from an employee who's already been medically certified for leave, but they can reach out to see how the worker's doing.
Daniel A. Schwartz of management-side firm Shipman & Goodwin LLP in Hartford, Conn., also thinks the EEOC “takes a fairly aggressive” position on how much leave employers may need to grant to accommodate workers with medical conditions.
Yet the agency doesn't provide many “hard and fast answers,” he said.
“What remains open is how much is enough,” he told Bloomberg BNA May 11. That's frustrating for employers because the EEOC doesn't establish an endpoint, Schwartz said.
The EEOC also doesn't address how employers should handle “vague and incomplete” medical information received from a worker or the doctor, Schwartz added. Employers are instead left to wonder when they've gone far enough in attempting to clarify such information and accommodating the worker, he said.
Savits said the resource document may be most helpful to human resources employees and in-house counsel, who might not be that familiar with the issue of leave as an ADA accommodation. For example, the post-leave notice provisions in the guidance highlight how a lack of knowledge may cause a company to mislead employees about their ADA rights.
Striking a similar note, Schwartz said that when a disabled employee's leave is soon to expire, “it's really important” for an employer to communicate that fact and find out how the employee is doing and whether further accommodation may be required.
East said the document makes clear that a reference in a doctor's note that an employee due to return from leave is still having medical restrictions should be viewed by employers as a request for additional leave or another accommodation.
Robertson said the document may have its greatest impact at the EEOC charge and investigation stage. Employers that continue to pursue inflexible maximum leave or 100-percent-healed policies are more likely to see charges result in EEOC findings of discrimination, she said.
As a result, employers should review and, as necessary, update their employee leave policies, she said. They should also revise any form letters used to notify employees that leave is due to expire. Such letters should include language signaling the employer's willingness to continue the ADA-accommodation dialogue if the employee isn't ready to come back to work or will still have medical restrictions upon returning to the job, Robertson said.
Many large employers outsource some aspect of their leave administration function, and it's important for those employers to make sure that people handling the FMLA leave program communicate and coordinate with those handling its ADA accommodation program, Robertson added. She said employers should make sure that a consistent leave-expiration form letter is used across those functions.
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