Employers Seek Clearer Guidance for Leave as a Reasonable Accommodation

By Kathy Gurchiek Jun 13, 2011
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The importance of employer-employee communication concerning leave as a reasonable accommodation for people with disabilities was emphasized repeatedly by experts appearing before a
public hearing of the Equal Employment Opportunity Commission (EEOC) on June 8, 2011.

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. Leave of absence, including those beyond an employer’s permitted number of days off, can constitute reasonable accommodations, according to the EEOC.

Stakeholders at the hearing in Washington, D.C., represented camps that included all sizes of employers and disability rights groups, but they agreed more than they disagreed on how the EEOC can help employers who struggle to comply with the ADA and the Family and Medical Leave Act while running their businesses effectively.

Panelists included:

  • Christopher Kuczynski, assistant legal counsel, EEOC.
  • John Hendrickson, regional attorney, EEOC.
  • Brian East, senior attorney, Texas Disability Rights.
  • Claudia Center, director, Disability Rights Program, Legal Aid Society—Employment Law Center.
  • Ellen McLaughlin, partner at Seyfarth Shaw, LLP.
  • Edward Isler, partner at Isler Dare Ray Radcliffe & Connolly.

The importance of communication between the employer and the employee on leave—often referred to during the hearing as the “interactive process”—was a frequent refrain.

“Appropriate leave under the ADA requires an individualized analysis, even when the employer has a generous leave policy,” Hendrickson told commissioners.

Reasonable accommodation, he said, “requires more than merely putting the employee on leave and waiting to see if the employee heals 100 percent and can return to the same job.”

He pointed to two large class-action cases, against a national firm and a regional company, both of which had inflexible leave policies. The cases were settled by consent decrees for millions of dollars and changes to the companies’ policies.

One involved an employee who got hurt on the job and was on leave for a year. He was unable to return to his former, more physically demanding job and was terminated, despite the employee’s efforts to return to work in a different job for which he was qualified.

Staying in Touch

“Clearer lines of communication regarding reasonable accommodation are critical, not only with employees on leave but also with their supervisors and their managers, so that accommodation can be structured when the employee is brought back to work and applied on the line,” he said.

Some panelists, though, pointed to examples of employees who were terminated after the leave ended when the employee failed to respond to letters, e-mails and other efforts by the employer to reach out.

It is the employee’s obligation to ask for a reasonable accommodation unless the employer knows or has reason to know that the disability prevents the employee from making such a request, said McLaughlin, who represents large employers.

Isler pointed out that employees often “go radio silent” and stop communicating with the employer once they are on disability-related leave.

“I don’t know if they are afraid, if they don’t think they have to [communicate].” However, “we shouldn’t have to go begging the employee to please communicate.”

Center, whose clients work low-income jobs and often do not speak English as their primary language, said employees often do not know that they can request an extension beyond the fixed leave.

“The interactive process becomes critically important at the end of an employee’s leave of absence,” she said. “This type of impeded communication can often arise with third-party leave administrators. Sometimes [the third-party administrators] do not provide all of the information relevant to the employer,” she said.

A leave of absence is not an end in and of itself, she added.

“If the employee recovers but is terminated or otherwise barred from returning to work … [the] leave is just a bridge to nowhere,” Center said.

How Much Leave?

Kuczynski noted that employers struggle with how much additional leave they have to grant, particularly in cases where the initial leave has been generous. While they understand that leave is a form of reasonable accommodation under the ADA, employers want to know how many times they have to allow extensions to the leave period when the employee already has given an initial return date, he said.

Isler, whose firm represents small- and medium-size employers, urged that any future guidance from the EEOC recognize the challenges facing such employers. It is “critical,” he said, that guidance on the interactive process recognizes “that we’re not necessarily dealing with employers that have huge administrative staffs.”

He welcomed Commissioner Constance S. Barker’s suggestion that the EEOC provide best-practice guidance and questions and answers tailored to small businesses.

McLaughlin called for greater clarity from the EEOC and “more detailed and defined examples of situations where maximum leave policies are called into question,” plus examples of when extra leave is and is not deemed necessary. She asked that guidance from the EEOC be consolidated and address no-fault attendance and unplanned absences.

Public comments may be submitted to the EEOC at commissionmeetingcomments@eeoc.gov or mailed to Commission Meeting, EEOC Executive Officer, 131 M St., NE, Washington, D.C. 20507.

Kathy Gurchiek is associate editor for HR News.

Related Articles:

Leave Denials Often Violate ADA, SHRM Online Legal Issues, May 2011

Make a Resolution: ADA Training, HR Magazine, January 2009

Related Resources:

ADA: ADA Policy, SHRM Templates and Tools

ADA: Guidelines for Determining ADA Accommodation, SHRM Templates and Tools

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