Viewpoint: Get Your Disability and Leave Management House in Order

EEOC’s focus on disabilities raises the stakes

By Francis Alvarez, Kristin Bauer and Paul Patten Jun 10, 2016
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Lawsuits involving disability discrimination claims topped the Equal Employment Opportunity Commission’s (EEOC’s) list of litigation in 2015, even though disability discrimination was the third-most-frequently alleged type of discrimination in charges filed with the agency. This should come as no surprise.

In 2012, the EEOC issued its Strategic Enforcement Plan, highlighting six enforcement priorities. For disability-related issues, those priorities include “Eliminating Barriers in Recruitment and Hiring” and “Emerging and Developing Issues.” Under the first category fall practices such as drug testing, post-offer pre-employment medical examinations and other practices that may screen out applicants because of a disability. Under the second category fall accommodation claims, including accommodations for pregnancy-related conditions. That the EEOC classifies accommodation issues as “emerging and developing” is significant. The 2008 Americans with Disabilities Act Amendments Act, for the most part, left employer accommodation obligations untouched. One could argue that the agency wants to develop the law on employer accommodation obligations in a way that is more expansive than settled case law.

Recent Data

The EEOC continued to press its enforcement priorities in 2015 and 2016. The agency has pursued relief in conciliation agreements or litigation against employers for allegedly improperly relying on a medical condition to screen out applicants (in drug testing, medical exams, applicant disclosures or a combination thereof), and for alleged failures to accommodate. Many of these cases are fact-specific, but there is commonality, including challenges to fixed or inflexible leave and attendance policies, failing to consider transfers to vacant alternative positions as part of the accommodation dialogue, requiring workers to be “100 percent healed,” and not considering an alternative means of drug testing when a disability interferes with typical drug testing procedures. More recent EEOC activity clearly indicates the commission is also interested in ensuring employers provide accommodations for pregnant workers.

Resource Document on Employer-Provided Leave

The EEOC’s May 9 “Resource Document”—Employer-Provided Leave and the Americans with Disabilities Act (ADA)— was long awaited and reflects a “no more excuses” stance from the agency. Reiterating EEOC litigation, the introduction specifically names three practices the agency believes violate the ADA:

  • Inflexible leave and attendance policies.
  • “100 percent healed” policies.
  • Not considering transfers to vacant alternative positions as part of the interactive process.

The document states that despite EEOC warnings against inflexible leave and attendance policies, charges filed with the agency demonstrate that employers do not consider additional leave as an accommodation.

The Resource Document was issued in the same week the EEOC settled (yet another) multimillion-dollar lawsuit challenging an employer’s maximum leave policy. A large home improvement retailer entered into a consent decree requiring it to distribute $8.6 million to former employees because it, among other things, terminated employees pursuant to a maximum leave of absence policy without considering additional leave as an accommodation.

Court Deference to EEOC

In 2015, the U.S. Supreme Court in Mach Mining v. EEOC addressed the ability of a court to review whether the EEOC met its statutory duty to conciliate a charge of discrimination before filing a lawsuit. In that case, the court held that its ability to review the EEOC’s conciliation efforts was narrow—one could argue to the point of being cursory.

The EEOC has since used the decision to argue that courts should likewise have limited ability to review the scope or sufficiency of the EEOC’s investigation to preclude multiplaintiff litigation. The combination of Mach Mining and decisions applying it leaves employers with fewer ways to challenge EEOC litigation based on the administrative process, although the Supreme Court may address the issue in the near future.

Message to Employers

Given these factors, expect the EEOC to be even more bold and aggressive as it investigates disability charges of discrimination. Although courts may ultimately snuff out some of the EEOC’s more aggressive stances, most employers are interested in staying away from an expensive, time-consuming investigation or multiplaintiff, nationwide litigation with the EEOC. For those employers, it makes sense to get ahead of this risk with preventive compliance efforts.

Annual review of policies and practices

Employers should conduct an annual check-up to review policies and practices that touch leaves and accommodations and ensure they are consistent with EEOC guidance, the latest case law, and state and local laws.

For example, we know from EEOC settlements, conciliation agreements and consent decrees that the EEOC expects every employer to have in place policy that tells employees how to request a reasonable accommodation. Examples of policies and practices that may invite EEOC scrutiny are as follows:

  • Accommodation policies, forms and practices.
  • Leave and attendance policies and practices.
  • Wellness programs and initiatives.
  • Drug testing (both pre-employment and during employment).
  • Physical agility tests (both pre-employment and during employment).
  • Fit for duty policies and practices.
  • Telecommuting practices.
  • Post-offer pre-employment medical examinations.
  • Light-duty policies and practices.
  • The criteria, including physical criteria, used to evaluate candidates for hire or internal transfer.

Policies and practices should also be reviewed for potential technical violations when applied in practice.

A review of policies and practices should extend to third parties. The EEOC believes that employers are responsible for ensuring that third parties retained to administer leaves (e.g., leave outsourcing companies or a short term or long-term disability carriers) engage in ADA compliant practices and communicate appropriately with the employer on issues impacting the accommodation dialogue. Medical information should be kept confidential and revealed only on a strict need-to-know basis.

Manager training

An often overlooked part of preventive compliance is specialized training for front-line managers. Managers, who may not understand the implications of their statements, actions or lack of action when dealing with injured, ill or pregnant employees, may increase the risk of litigation for employers. This training should ensure that managers know how to recognize requests for accommodation (or leave under other applicable statutes) and then connect employees to the right person who can assess their needs.

Eliminate silos in communication

Another specialized training session for the core team responsible for managing and coordinating leaves of absence and accommodation issues should be to arm the team with basic knowledge of applicable laws and ensure that silos in communication are eliminated.

Strategic position statements

The EEOC has demonstrated it will expand its investigation of an individual charge of discrimination to a multiemployee, class-focused investigation grounded in a policy or practice that may be only tangentially related to the underlying issues in the charge. Employers should make sure their own position statement does not provide the EEOC the fodder to begin a multiplaintiff investigation or open an ADA commissioner’s charge.

Handle Leave Requests Lawfully

Lower risks with the right policies, procedures and team to ensure individual leave and accommodation issues are handled correctly and to ensure appropriate attention to competing state and federal obligations. The goal: individual leaves of absence and accommodations are handled promptly, adeptly, lawfully and in a way that does not invite litigation or EEOC attention.

Francis Alvarez is an attorney with Jackson Lewis PC in White Plains, N.Y. Kristin Bauer is an attorney with Jackson Lewis PC in Dallas. Paul Patten is an attorney with Jackson Lewis PC in Chicago.

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