New EEOC Guidance - Handling Disabled Employee Leave Requests which Conflict with Your Company Policies and Practices
Miller & Martin PLLC Alerts | June 09, 2016
The Equal Employment Opportunity Commission (EEOC) has recently issued a new Americans with Disabilities Act (ADA) Guidance document which provides 20 examples of how the Agency expects employers to reconcile their regular company policies and practices with disabled employee leave requests. The Guidance is only 7 pages long and can be found here.
The Guidance contains very little "new" information but rather reiterates through examples several hot topics the EEOC has addressed through past ADA Guidance documents and recent ADA settlements and press releases. A few reminders from these examples are:
- Employers may not require employees to be "100% healed" or "fully released" before allowing them to return to work after a medical leave of absence. Employers must consider the employee's ongoing restrictions in order to determine whether a reasonable accommodation such as some temporary light or modified duty work could be available before either requiring the employee to remain out on leave or terminating them based on "leave exhaustion."
- "Indefinite leave" – meaning when an employee cannot say whether or when he/she will be able to return to work at all or how often he/she will need to miss work intermittently -- is not a "reasonable accommodation."
- If you offer "unconditional" paid leave, you cannot require those using it due to a disability to bring in a doctor's note, etc., if others are permitted to use the paid leave however and whenever they choose simply by requesting it.
- Employees should not be disciplined or otherwise penalized based on using a reasonable accommodation. An example here would be an employee who is granted an extended leave due to a disability but then later is denied a promotion or receives a negative comment on his/her annual evaluation due to "bad attendance" or the leave itself.
Miller & Martin caveat - If the employee's performance was bad during the time he/she was at work, you are still permitted to comment on this in his/her evaluation, in write-ups, etc. just as for any other employee. You do not have to ignore bad performance just because an employee also has recently used leave or another disability accommodation.
- The factors to consider as part of the interactive process when a disabled employee requests an accommodation are:
- the specific accommodation(s) the employee requires (which may be different than what he/she is requesting);
- the reason an accommodation or work restriction is needed (that is, the limitations that prevent the employee from returning to work without a reasonable accommodation);
- the length of time the employee will need the accommodation;
- possible alternative accommodations that might effectively meet the employee's disability-related needs; and
- whether the requested accommodation would cause an undue hardship.
- It is not "enough" under the ADA simply to treat a disabled employee "the same as everyone else" regarding the application of company policies and practices. The concept of "reasonable accommodation" is that disabled employees are entitled to preferential treatment/exception regarding your usual attendance and other policies if you can provide such treatment/exception without creating an undue hardship.
Miller & Martin caveat - One exception to this general "preferential treatment/exception" rule that the U.S. Supreme Court has recognized is employers are not required to make exceptions to seniority requirements which are part of a collective bargaining agreement or other uniformly-applied seniority system.
This exception does not extend to every policy or benefit which is based on time of service, however.
Example – if you have a vacation policy which states that an employee must be employed for a year before he/she will be eligible for any vacation time, and a disabled employee who has only worked for you for a few months requests a week off due to a flare-up or for treatment relating to the disabling condition, you cannot deny this request solely on the basis that "the employee has not been employed long enough to qualify for any vacation time." Unless you can show that providing the one week of leave would be an undue hardship, you would be required to provide it as a reasonable accommodation under the ADA. You would not have to pay the employee for the week off, however, since he/she does not qualify for any vacation time yet due to only having worked for you for a few months. Paid leave is not required as a reasonable accommodation under the ADA.
- Another example of possible preferential treatment/exception which may be required per the EEOC relates to an employer's attendance points system.
Example -- if your attendance points system provides that an employee will be terminated if he/she accumulates 10 points in any 12-month period, if a disabled employee provides medical documentation stating that he/she is likely to have on average "1-2 flare-ups a month lasting at least a day apiece," you will need to consider whether you can accommodate 12-24 possible unscheduled absences per year or not. You cannot terminate the disabled employee once he/she accumulates more than 10 points simply by citing your "uniformly-applied attendance points system." If you notify the employee that you can only reasonably accommodate 12 unscheduled absences per year, and the employee is out 13 days in a year, then you could terminate based on your inability to accommodate all the time the employee needs to be off work on an unscheduled basis. (Note here that some courts have held in this type of scenario that the 12 unscheduled absences per year should be the "starting" rather than the "ending" point of the employee's discipline – i.e., the employee should be allowed 10 attendance points in addition to the 12 unscheduled absences you said you could accommodate. Tennessee federal courts have not yet had an opportunity to rule on such a specific example; the courts referenced here mostly are on the West Coast, but they were interpreting the ADA, so this is something to be aware of when terminating a disabled employee based on "absence # 13.") Regular (although not perfect) attendance is still an essential function of most positions, but drawing "the line" as to when attendance issues become an "undue hardship" can be an imprecise and tricky endeavor.
- Some factors to be considered in assessing undue hardship when it comes to disabled employee leave requests are:
- the amount and/or length of leave requested;
- the frequency of the leave (if it is intermittent);
- whether there is any flexibility with respect to the days on which leave is taken;
- whether the need for intermittent leave on specific dates is predictable or unpredictable;
- the impact of the employee's absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner; and
- the impact on the employer's operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer.
- On this same "preferential treatment" note, the EEOC reiterates the position courts in the South, Southeast and Northeast have not yet agreed to, that an employee who is unable to perform his/her current job due to a disability must be placed in an open position for which he/she meets the minimum required criteria, even if there are more qualified applicants for the position available. The EEOC concedes that this does not require employers to promote disabled employees, so it would only apply to lateral or lower positions than their current job. The EEOC also notes the uniformly-applied seniority system exception referenced in the second "Miller & Martin caveat" above, i.e., that employers are not required to ignore or violate such systems in order to put a disabled employee into an open position. Such employees would not be deemed to "meet the minimum qualifications of the job" in light of the uniformly-applied seniority system.
- One example in the new EEOC Guidance actually contradicts the DOL's FMLA regulations to the extent the leave is covered by the FMLA as well. The EEOC example states that employees may not be required to provide "periodic updates" once they are approved for an extended leave. The DOL expressly allows such updates if the leave is also covered by the FMLA.
- Regarding another FMLA/ADA point of intersection, the new Guidance also reiterates that providing FMLA leave is not "the end of the story" regarding providing a reasonable accommodation under the ADA. Before terminating an employee at the end of an FMLA leave who is not able to return to work due to his/her own medical condition, you will need to evaluate (1) whether that condition rises to the level of being a disability under the ADA, (2) if so, whether you can accommodate some additional leave, or (3) whether you have some light or modified duty work the employee could perform until he/she is able to return to his/her regular job.
Employers are permitted to consider the fact that they have already provided 12 weeks of FMLA leave or perhaps even more than that under a company policy or applicable state law in assessing whether a request for additional leave constitutes an undue hardship. The same would be true regarding intermittent leave requests.
Example – while employee had FMLA leave available, he/she used 4-6 days per month of unscheduled leave due to unplanned flare-ups which were medically certified. Once the employee's FMLA leave is exhausted, you may inquire as to whether this level of unplanned, intermittent time off will still be required going forward. If the employee's doctor says "yes", the fact that you have allowed this much unplanned, intermittent time off in the past due to being required to do so under the FMLA will not bind you to have to keep doing so going forward if providing this much unplanned, intermittent time off will be an undue hardship based on your operations, other employees having to cover for the disabled employee, projects the disabled employee is assigned not being timely completed, customers he/she is assigned not being consistently served, etc.
The Guidance also addresses one new common facet of the interactive process that employers should note.
- Be careful if you outsource your FMLA leave or short or long-term disability benefits or other leave, accommodation or benefits administration to make sure any "form letters" generated by the outsourced administrator do not violate the above points, particularly the last one. Any form letter which states "you are now being terminated because X benefit or leave period has expired" will violate the ADA. Such letters should instead say "if you are unable to return to work now that X benefit or leave period has expired, you must contact. . .[either Human Resources or someone employed with the outsource administrator, etc.] regarding next steps." The second "good" form letter ensures that the employee has at least been invited to engage in the interactive process to see whether some additional leave or perhaps some light or modified duty work may be available as a reasonable accommodation, depending on how much longer the employee anticipates needing to be off work and/or his/her current restrictions and how long they are expected to last.
The EEOC's new Guidance concerning the ADA emphasizes again the complex nature of this law. As you receive requests for leave or other accommodations, please feel free to contact Stacie Caraway or any other member of our Labor & Employment Law Practice Group for assistance answering questions such as (1) is the employee disabled? (2) if so, what medical information are you entitled to obtain based on the accommodation request? (3) how do you determine if the requested accommodation is "reasonable" or not, particularly since based on this new Guidance you are not permitted to rely on your usual company policies and practices as a guide?