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 accommodations.
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.