Over the last several months, I have written about leave
as a reasonable accommodation. This hot topic was recently the subject of an
EEOC public meeting, which featured testimony from a panel
of industry leaders who offered their views about how to comply with the
ADA and appropriately permit employee leaves.
The Americans with Disabilities Act (ADA) requires reasonable
accommodations when necessary so that people with disabilities can perform the
essential functions of their jobs, unless doing so would constitute an undue
hardship to the employer. Leaves of absence-including those beyond an
employer's permitted number of days off-can constitute reasonable
John Hendrickson, Regional Attorney for the EEOC,
discussed two recent inflexible leave policy cases that have received a lot of
publicity. The first case, EEOC v. Sears, resulted in a sizeable $6.2
million dollar settlement - the largest single ADA settlement to date. The 253
class members were allegedly placed on leave, but automatically terminated if
they were unable to return to work after a year. The EEOC alleged that Sears'
inflexible policy violated the ADA. In another case, the EEOC
alleged that Jewel-Osco maintained an impermissible "one year and you're
out" policy. In 2010, this case was resolved after the entry of a $3.2 million
consent decree, distributed among 111 claimants.
While it is clear that inflexible leave policies that
result in the automatic termination of employees are not permitted, the limits
of how much leave must be offered to employees who cannot return to work after
exhausting all other leaves is not so black and white. As explained by Ellen
McLaughlin, a partner at Seyfarth Shaw LLP, further guidance is needed from the
EEOC for employers who face this dilemma:
Employers are clear that unpaid leave is a form of
reasonable accommodation that may need to be provided to qualified employees
with disabilities under the Americans with Disabilities Act . . . absent undue
hardship. Where employers struggle is determining what limitations they may
place on leaves they offer and the extent of the duty to hold an employee's position
open during the leave, while still effectively running their businesses.
Employers need further guidance and clarification in this area, and
specifically, need a better understanding as to the Equal Employment
Opportunity Commission's . . . position on how to administer leave as a
reasonable accommodation under the ADA.
Edward Isler, a partner at Isler Dare Ray Radcliffe &
Connolly, P.C., also offered testimony about the struggle employers face when
attempting to comply with the ADA, and identified six points the EEOC should
consider when offering additional guidance on leave as an accommodation:
1. The Commission should embrace the position endorsed by
the courts that in the vast majority of employment settings, reliable,
consistent attendance is an essential function of the position.
2. The Commission should recognize and address the
reality that there is a significant distinction between the burden imposed upon
employers by (i) short-term block absences, (ii) long-term block absences, and
(iii) ongoing unexpected and unplanned occasional but persistent absences.
3. The Commission should recognize that the undue
hardship analysis for employers impacted by disability-generated employee
absences must be holistic and realistic.
4. The Commission should recognize that its charge is to
ensure "equality of opportunity" and to protect those who can perform the
essential functions of their position, and be careful to refrain from pressing
policies that provide employees with disabilities with significant preferences
and advantages as compared to employees without any identifiable disabilities.
5. The Commission should recognize that an employee's
length of service should play some role in determining an employer's obligation
to make modifications beyond its normal attendance policies.
6. The Commission should ensure that its guidance does
not place a greater burden on the employer to engage in the interactive process
than on the employee.
As evidenced by the testimony before the EEOC, employers
continue to question how much leave must be offered to an employee who is
unable to return to work. Even companies with the best of intentions - that
make every effort to comply with the ADA - have difficulty navigating the
current guidance. Based on the EEOC's focus on this issue, I imagine that
additional guidance will be forthcoming.
Read more articles on employment law issues
at Employment and the
Law, a blog by Ashley Kasarjian
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