On the Importance of Documenting Facts: NELI’s Cautionary Tips for Employers


Paris

A NELI director, EEOC attorney advisor and management lawyer walk into a conference. The director walks up to the podium and says, “Welcome to Paris!” to those attending the employment law presentation for the very first time. (The National Employment Law Institute’s ADA & FMLA Compliance Update still feels like Paris to me—despite that I’ve attended the program multiple times over the years. There may not be chocolate croissants or bright lights, but the content is rich and illuminating.)

All joking aside, NELI hosted a distinguished panel of ADA and FMLA experts on day one of its two-day program. The panelists examined the evolving law under the ADA Amendments Act of 2008 and the Rehabilitation Act and explored the Equal Employment Opportunity Commission’s latest positions on leave as an ADA accommodation. In light of these legal developments, the speakers proffered practical guidance on managing accommodation requests in today’s workplace.  

The Facts, the Facts, the Facts

This past year has been a “tale spinning year in the courts,” said David Fram, director of ADA and equal employment opportunity services with NELI.

By and large, courts aren’t assuming ADA claimants are individuals with “disabilities.” They want to know there’s an impairment, a major life activity and a substantial limitation, he said.

Such cases are “a real wake-up call” for plaintiffs’ attorneys “that courts are not going to do what EEOC says on the question of disability (they’re not skipping over it)” and a good illustration of the type of information to which HR personnel and management attorneys are entitled, he noted.

While courts have been demanding of employees when it comes to establishing proof of coverage, they have been tough on employers on qualification standards that might screen out someone because of a disability, Fram said. Courts are making employers demonstrate that the standard is job-related—that they “can’t live without it,” he said.

As to reasonable accommodation issues, there have been “tremendous cases” for employers on what “reasonable” means and instructive cases for employees on whether things like telecommuting, modified work schedules and reassignment might be required as accommodations.

It’s striking how much more in depth federal courts are going when issuing their decisions under Title I of the ADA, observed Sharon Rennert, senior attorney advisor in the Equal Employment Opportunity Commission's ADA/GINA Policy Division. The decisions are fact intensive, and, oftentimes, the losing side has erred in citing case law with facts that aren’t analogous, she noted.

Furthermore, she added, it’s critical to understand not only the facts but also the EEOC’s positions on the issues, as many courts have adopted the commission’s views.

Wait-and-See Approach to Trump

On the direction of the ADA and the EEOC under the new presidential administration, the speakers couldn’t predict what lies ahead.

“The trends that we’ve been seeing—do we throw those out the door? Not necessarily, but I don’t know what the future holds,” Jeff Nowak, partner at the Chicago management law firm Franczek Radelet P.C. and co-chair of the labor and employment practice, said. “Our new president is likely going to be very unpredictable.”

Nowak said we might expect the pendulum to swing from far left to far right under Trump. “For my clients, I want stability,” and “I’m worried for my clients that that pendulum swinging to the right will bring uncertainty for the employer community,” he said.

Rennert echoed Nowak. “I truly don’t know” what to expect for the EEOC under the Trump administration, she said.

“There is nothing on ADA or GINA that’s about to come out right away,” she stated, “because we have to wait and see where things go.”

‘Intermittent Leave’—New Label or New EEOC Policy?

The EEOC in May 2016 released a resource document on leave and the ADA. The document compiles positions the agency has already taken on when and how employers must provide leave for disability-related reasons, EEOC’s Rennert asserted. The document “was not about creating new positions,” she clarified.

But according to Fram, some positions are new policy—and while some provide clarity, others may muddy the waters.

The agency document elucidates that indefinite leave will cause an undue hardship, he said. Leave is “indefinite” when an employee can’t say whether or when he’ll be able to return to work, the document explains.

As to the concept of providing intermittent leave to workers with disabilities—which the document mentions ten times—Fram said, “I think this is brand new” and that the EEOC is trying to extend a Family and Medical Leave Act concept to the ADA.

“This is not in any way new policy,” Rennert maintained.

Indefinite Leave Not Required

Federal circuit courts have held that indefinite leave isn’t a reasonable accommodation, without reaching the undue hardship issue, Nowak said. The Eleventh Circuit in a disability discrimination suit under the Rehabilitation Act concluded a leave extension request wasn’t reasonable because it wouldn’t have enabled a police sergeant to perform her essential job duties in the present or immediate future.

The case demonstrates leave is unreasonable if it won’t lead to job performance, he said.

“Courts are saying indefinite leave is not an accommodation because there’s got to be some date we’re looking at to know whether this person’s going to be able to return to work,” Fram said.

Fram also pointed to cases from the Fifth, Seventh and D.C. circuits in which employers prevailed where an employee’s ability to come back to work regularly after a leave of absence (or repeated leave extensions) was uncertain or not intended. According to the courts, the employees failed to establish they were “otherwise qualified” for their positions.

It’s useful for employers to have decisions like this in their back pocket should litigation arise. Nevertheless, termination decisions themselves may be fraught with a lot of risk.

Do the Employer ‘Three-Step’

How should an employer approach a situation in which a disabled employee has exhausted FMLA leave and continues on a leave of absence? How can the employer put itself in the best position possible to either fill the position or potentially terminate employment?

Nowak recommended the following “employer three-step” approach:

  • Maintain regular contact with the employee during the FMLA leave period. Around week 10, remind the employee that FMLA leave is about to conclude and that you expect the employee to return to work. Ask the person to contact you if he or she needs any help returning or can’t return. If the employee requests additional leave, the employer has the right to obtain information from the employee’s physician regarding the impairment and its effect on job performance and the expected return date. Grant the initial leave extension request to help the person return to work.
  • If the employee requests a second leave extension, reach out to the employee’s doctor and ask why the employee needs more time off (or why the doctor’s initial estimate was inaccurate). Talk to managers and supervisors about the impact of the employee’s absence on business operations. Are projects on hold? Are co-workers or management taking on the employee’s work? Document those conversations and any accommodations considered. Grant the second leave request and explain to the employee how his or absence is affecting operations and discuss all of the leave provided to date.
  • If the employee requests a third leave of absence, the employer is in a good position to state that it can no longer continue to provide leave as an ADA accommodation due to the effect of the employee’s absence on operations. Inform the employee that the position must be filled if he or she can’t return to work.

During this interactive process, an important consideration is who is speaking to the employee’s doctor, Fram said. “If you’re big enough and lucky enough to have medical people on staff, you might consider having your medical person call the person’s doctor” because “a doctor will tell the truth to another doctor.”

Nowak in the summer of 2016 conducted a webinar with EEOC Commissioner Chai Feldblum on managing repeated requests for leave as an ADA accommodation. (His takeaways from the webinar and this three-step process are detailed in his FMLA Insights blog.) While Feldblum didn’t endorse his approach, she indicated it would be “an incredibly defensible position at the EEOC.”

 

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