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absent-workersThanks again to those who attended my June 23 webinar with EEOC Commissioner Chai Feldblum on the topic of “leave” as an ADA reasonable accommodation in light of the EEOC’s new technical resource issued on this topic in early May 2016. If you missed the program, you can access the webinar and materials here.

This is the second part of a two-part blog post in which I recap the issues Commissioner Feldblum and I discussed during the webinar.  Yesterday, I provided guidance on how an employer should address an employee’s requests for multiple extensions of continuous leave, which we covered at some length during the webinar.

During the webinar, we also covered how an employer should address an employee’s intermittent and unpredictable absences after FMLA leave has exhausted. I address these issues below.

Intermittent, Unpredictable Leave After FMLA Ends

As I noted for Commissioner Feldblum, one of the most frustrating issues for employers in this area is an employee’s continued sporadic, unpredictable absences (after FMLA has ended) that wreak havoc on an employer’s operations. Employers rightfully complain that an employee’s repeated intermittent absences after FMLA ends effectively transform a full-time position into a part-time position, giving the employee just enough time to gain back FMLA hours only to start the cycle again.

Keep in mind that EEOC takes the position that employers are obligated to provide leave in these situations unless it can show the continued absence constitutes an undue hardship.  (See yesterday’s blog post for more analysis on this point.)

Because intermittent leave is irregular and unpredictable, however, an undue hardship defense will be easier to advance in these situations.  Here, you are more likely to show that these continued intermittent absences adversely impact your operations and the ability to serve your customers/clients.

To illustrate, take John, our hypothetical employee who has been absent for depression and fibromyalgia. After exhausting FMLA leave, he continues to take, on average, one day off per week both for medical and undisclosed reasons. John effectively has turned the full-time position into a part-time endeavor, which allows you to make a case for undue hardship:

  • Temporary employees filling in for John are not as effective in the role and are prone to more errors
  • You are incurring overtime costs for other employees who have to cover for John
  • Lower quality of work from replacement(s) and not completed in a timely manner
  • You are taking on additional costs because John cannot attend to his full-time duties
  • Vendors are complaining about late or incorrect payments because your accounting department can’t keep up
  • Projects are being pushed off during John’s absence
  • Management employees are being pulled away from their work to attend to John’s duties
  • Employee morale results in demonstrably lower productivity

The EEOC’s resource document backs up our ability to establish undue hardship in these situations, as it makes clear that we can consider the following factors in establishing undue hardship:

  • The amount and/or length of leave required (John’s sporadic absences have continued for several months after FMLA had exhausted)
  • The frequency of the leave (John averages one day off each week)
  • Whether there is any flexibility with respect to the days on which leave is taken (his leave is completely unforeseeable)
  • Whether the need for intermittent leave on specific dates is predictable or unpredictable (if John’s absences are not woefully unpredictable, I am not sure what is!)

As I addressed in yesterday’s blog post, employers can obtain information from the employee’s physician regarding the continued need for leave, asking questions to help determine the undue hardship factors identified above.  In intermittent leave situations, it also is critical for the employer to continue to engage in the interactive process with the employee so that it can best determine whether any assistance can be provided to help them improve their attendance and return to work.

In addition to the thorny topic above, we also covered the following topics during the webinar:

Indefinite Leave

Commissioner Feldblum confirmed that “indefinite leave” is not a reasonable accommodation, echoing the resource document’s guidance in this area:

Indefinite leave – meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship, and so it does not have to be provided as a reasonable accommodation.

100% Healed Policies

All too many employers require that employees be “100% healed” or “without restrictions” before returning to work.  According to EEOC, this approach violates the ADA.  We reminded attendees to re-evaluate these practices and implement policies that provide for individualized assessments of an employee’s ability to return to work with or without a reasonable accommodation under the ADA.

Reassignment

Although we did not have much time to cover the topic of reassignment as a reasonable accommodation, the EEOC makes clear — and Commissioner Feldblum reiterated — that employers have an obligation under the ADA to reassign an employee if his disability “prevents the employee from performing one or more essential functions of the current job, even with a reasonable accommodation, or because any accommodation in the current job would result in undue hardship.”  Deemed by the courts as the “accommodation of last resort,” reassignment still must be considered if all else fails.

Finally . . . Where Do You Find All These EEOC Documents?

Throughout our session, Commissioner Feldblum and I referred to the new EEOC resource in addition to other guidance provided by EEOC over the years on ADA reasonable accommodation.  Here are the links to these resources:

eeocLast Thursday, I had the pleasure of conducting a webinar with EEOC Commissioner Chai Feldblum on the topic of “leave” as an ADA reasonable accommodation in light of the EEOC’s new technical resource issued on this topic in early May 2016. If you missed the program, you can access the webinar and materials here. In addition to covering information contained in the EEOC’s new resource document, we also identified some practical approaches in determining whether and how much leave employers are obligated to provide when it comes to the ADA.

Since we covered so much information on leave as a reasonable accommodation, for the first time ever (I think), I am splitting this blog post into two parts:

  1. Today, I will recap our guidance in the webinar on how an employer should address an employee’s requests for multiple extensions of continuous leave (Part I).
  2. Tomorrow, I will recap our guidance on how an employer should address an employee’s intermittent absences and unreliable attendance after FMLA leave has exhausted. I’ll also cover issues such as indefinite leave, 100% healed policies and automatic termination policies (Part II).

Here are my takeaways:

Undue Hardship: Learn it, Live it, Love it

As confirmed in the EEOC’s new resource and by Commissioner Feldblum, if an employee requires leave from work because of a disability, the employer must provide leave as a reasonable accommodation unless the employer can show that the leave of absence creates an undue hardship. EEOC appears to presume that any request for leave — no matter the length — is an effective accommodation. Before we even get to the undue hardship analysis, however, an employee should be required to establish that his request for additional leave is effective in helping him return to work in the near future.  If it’s not effective, then why do through the undue hardship analysis, right?

But let’s put that argument aside for the moment. At this point, it should be clear to us that neither the EEOC nor any court will create a bright line rule identifying how many extensions of leave we are required to provide an employee prior to termination. Therefore, I suggest that employers move away from the focus on the number of extensions they are required to provide. There is no answer. Rather, employers must focus on engaging the employee in a robust interactive process and examining how the employee’s continued absence is creating a hardship on its operations.

Let’s apply this concept to a scenario you likely have faced: As I explained during the webinar, your employee, John, suffers from depression and fibromyalgia. He exhausts FMLA leave, at which point he requests three consecutive extensions of leave lasting about one month each. I pitched to Commissioner Feldblum a process in which the employer would provide the employee up to three extensions of leave, at which point it would either fill his position or terminate employment. Of course, the Commissioner could not endorse a particular method, nor could I ask her to speak on behalf of the EEOC, but she found my recommended process below to be reasonable.

First Extension

Before John’s FMLA leave is exhausted, we send the employee our “Stevie Wonder” letter (see slide 17 of the PPT and my explanation during the webinar to understand the connection) reminding the employee that FMLA leave is ending, that you expect him to return to work, and inviting him to contact you if he needs assistance to return to work or if he cannot return to work. If the employee requests additional leave beyond FMLA, then we have the right to obtain information from his physician about the medical condition and need for additional leave. These questions are spelled out in the EEOC’s resource document and in previous EEOC guidance. As made clear in the EEOC’s resource document, we can require the physician to answer the following questions:

  1. What are the basic facts regarding the impairment? (No diagnosis!)
  2. What are the activities that the impairment limits (and the extent to which)?
  3. How does impairment affect the employee’s ability to perform essential job functions and what job functions?
  4. Can the doctor identify any accommodations that would help the employee perform the essential job functions?
  5. If leave is necessary, what is the expected date upon which the employee can perform essential job functions?

Second Extension

When the employee makes the second request for leave, we use correspondence at this phase to outline how his absence is impacting our operations. Here, we use the undue hardship factors at slides 22 and 23 of my webinar PPT to provide John specifics on how this amounts to a hardship. For instance, can we show:

  • Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
  • Lower quality and less accountability for quality
  • Lost sales
  • Less responsive client service & increased client dissatisfaction
  • Deferred projects
  • Increased burden on management staff required to find replacement workers, or readjust workflow or readjust priorities in light of absent employees
  • Increased stress on overburdened co-workers
  • Lower morale that results in demonstrably lower productivity (Be careful! Employee morale should never be the sole reason for undue hardship, and EEOC will not buy this excuse standing on its own.)

When do we conduct this undue hardship analysis?  As a general matter, employers typically conduct the undue hardship analysis only after the employee has exhausted FMLA leave and is requesting additional leave as an ADA accommodation. That’s often too late. To her credit, Commissioner Feldblum noted that employers have the flexibility during an employee’s FMLA leave to assess whether the absence constitutes an undue hardship. Although FMLA would protect that employee’s job for up to 12 weeks, the employer now has an argument that an undue hardship — if properly supported, of course — occurs shortly after FMLA is exhausted. Since the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship doesn’t precisely address the timing of when an employer should assess undue hardship, Commissioner Feldblum’s comments help clarify the issue.

Let me be clear on this critical step, since it’s so important: Assessing and documenting how an employee’s absence creates an undue hardship is critical, so I recommend that you work with your employment counsel to identify a compliant ADA process in which you lawfully consider the undue hardship criteria and apply them to an employee’s specific situation.

Third Extension

Because you have identified the month before how John’s continued absence is impacting your operations, you now are in a good position to communicate that a third extension of his leave constitutes an undue hardship on your operations. Although you must remain flexible to consider changed circumstances and other accommodations John might need to return to work, it is reasonable at this stage to inform John that you will need to fill his position (and/or terminate his employment) if he is unable to return to work after another extension.

At this stage, you may also consider requesting updated information from John’s physician about his ability to return to work.  In this correspondence, you can pose the following questions

  1.  What amount of additional leave needed?
  2.  Why is additional leave necessary?
  3.  Why did the physician’s initial estimate prove inaccurate?

Insights for Employers

So, you might ask, am I endorsing a “three strikes and your out” approach? Not exactly, but pretty darn close. Remember that the interactive process is not rigid — it must remain flexible so you can conduct an individualized assessment of what assistance may be necessary to help the employee return to work. However, if you engage your employee in a meaningful interactive discussion early on in the leave process and you document how the employee’s leave is creating a hardship on your operations, you are in the best position to take action when the employee asks for that third extension request.

But what if employee continues to mess with our operations by missing work intermittently and without notice after FMLA ends?  Or what if the employee’s physician cannot provide an estimate as to when the employee can return to work? Can we establish an automatic termination date? May we require our employee to return to work with no restrictions?  And how does reassignment fit into all of this?

I answer these questions in Part II.

webinarWhen: Thursday, June 23, 2016 (12:30 – 1:45 p.m. CDT)

Online registration: Click here

This is going to be fun!

Earlier this month, the EEOC issued a technical assistance resource on leave as an ADA reasonable accommodation under the ADA. I am delighted that EEOC Commissioner Chai Feldblum will join me for a webinar to take a deep dive into the information provided in the EEOC’s resource and apply the technical assistance to a variety of real-life scenarios.

This complimentary webinar comes at a critical time for employers, as employers need to be informed about the extent to which they should provide a leave of absence to an employee with a medical condition – either before or after the employee’s FMLA leave has expired (or when FMLA doesn’t apply at all). Whether it’s the obligation to provide light duty, how and when employers can obtain medical information about an employee’s need for leave, or how many extensions of leave must they provide, employers often struggle with their obligations to provide leave as an ADA reasonable accommodation.

The webinar will provide employers much-needed technical assistance for staying compliant with the ADA and related laws. Commissioner Feldblum and I will cover a variety of common, yet difficult issues, including:

  • At what point must an employer consider leave as a reasonable accommodation?
  • What information can an employer obtain from an employee’s health care provider to support a request for leave? How often can an employer request this information?
  • How should employers structure their paid leave and related policies to comply with the ADA?
  • Can an employer maintain an “automatic termination” policy that sets a specific end date upon which an employee is terminated when they cannot return to work?
  • At what point is an employer required to reassign an employee to another position as a reasonable accommodation?
  • How many extensions of leave must an employer provide before it can permanently fill an employee’s position or terminate employment?

Maybe I’ll even entice Commissioner Feldblum to sing with me! Register HERE.

Feel free to email me questions in advance at jsn@franczek.com.

CLE/SHRM/HRCI Credit
My law firm is an approved provider of Illinois Minimum Continuing Legal Education (MCLE). This program is approved for 1 hour of MCLE credit. This program also has been submitted to SHRM and the HR Certification Institute for review and approval for accreditation.

EEOC-bannerFor years, employers across America have been clamoring for guidance from the EEOC about how they should manage an employee’s request for extended or intermittent leave from work and how much leave is considered as a reasonable accommodation under the ADA. This week, employers received an answer.

Well, kind of.

Yesterday, the EEOC issued a resource document — entitled Employer-Provided Leave and the Americans with Disabilities Act — that addresses “the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation,” which the agency contends “serve as systemic barriers to the employment of workers with disabilities.”

Noting the “troubling trend” in charges of discrimination that allege violations of the ADA (up 6% from last year), the EEOC believes this resource document “explains to employers and employees in a clear and practical way how to approach requests for leave as a reasonable accommodation so that employees can manage their health and employers can meet their business needs.”

Although the resource document was developed by EEOC staff and approved by EEOC Chairwoman Jenny Yang, it is not voted on by the entire Commission and technically does not carry the weight of official guidance issued by the agency.  Still, this resource still should guide employer decision-making when considering leave as an ADA reasonable accommodation.

Key Points 

The resource covers six main topics, but here are the key points, based on my initial read:

  • Equal Access to Leave under an Employer’s Paid Leave Policies.  According to the EEOC, if an employer receives a request for leave for reasons related to a disability and the leave falls within the employer’s existing paid leave policy, it should treat the employee requesting the leave the same as an employee who requests leave for reasons unrelated to a disability.  For example, if an employer requires a doctor’s note to support a leave request made by a non-disabled individual, it can require the same for a leave request made by a disabled employee. However, if the employer generally places no conditions on the use of paid leave, it cannot require a disabled employee to jump through hoops to obtain the same paid leave.  One of the examples provided by EEOC is instructive:

An employer provides four days of paid sick leave each year to all employees and does not set any conditions for its use. An employee who has not used any sick leave this year requests to use three days of paid sick leave because of symptoms she is experiencing due to major depression which, she says, has flared up due to several particularly stressful months at work. The employee’s supervisor says that she must provide a note from a psychiatrist if she wants the leave because “otherwise everybody who’s having a little stress at work is going to tell me they are depressed and want time off.” The employer’s sick leave policy does not require any documentation, and requests for sick leave are routinely granted based on an employee’s statement that he or she needs leave. The supervisor’s action violates the ADA because the employee is being subjected to different conditions for use of sick leave than employees without her disability. (Example 1)

  • Unpaid Leave must be considered as a Reasonable Accommodation.  Where an employee’s paid leave has run out, or where the employer maintains no paid leave policy, an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if: 1) the employee requires it; and 2) it does not create an undue hardship for the employer (see my analysis below on how employers establish undue hardship).  Another EEOC example is illustrative:

An employer’s leave policy does not cover employees until they have worked for six months. An employee who has worked for only three months requires four weeks of leave for treatment for a disability. Although the employee is ineligible for leave under the employer’s leave policy, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship. (Example 5)

  • All Requests for Leave Must be Treated as a Request for a Reasonable Accommodation.  Yes, you read that correctly.  If the EEOC ever was ambiguous on this point before, it’s cleared it up now — each time an employee requests leave from the job because of a medical condition, the request must be analyzed through the lens of FMLA and ADA.  This concept is hardly earth-shattering, and it makes sense. Where an employee needs leave from work because of a serious medical condition, any good employer should use it as an opportunity to engage in the interactive process to determine how we can best address the employee’s situation in an effort to keep them engaged and at work.  A leave of absence is only one tool to help us accomplish our goal in maintaining a productive and healthy workforce.
  • Utilize “Automatic termination” Provisions at Your Own Risk.  In this resource, the EEOC again strongly counsels against policies which call for termination of employment after the employee has been absent for a certain period of time (e.g., 3 mos., 6 mos., etc.), since these policies do not sufficiently meet the employer’s obligation to engage in the ADA’s interactive process and to determine whether a reasonable accommodation is necessary.  As I explain more fully below, employers should make a case-by-case assessment of the individual employee’s situation before hitting the termination button.
  • Reassignment to a Vacant Position.  The EEOC uses this resource as a reminder that an employer has an obligation under the ADA to reassign an employee if their disability “prevents the employee from performing one or more essential functions of the current job, even with a reasonable accommodation, or because any accommodation in the current job would result in undue hardship.”  Deemed by the courts as the “accommodation of last resort,” reassignment still must be considered if all else fails.
  • Undue Hardship Still a Nebulous Beast to Figure Out.  The EEOC offers guidance and some additional criteria to consider when determining whether a possible accommodation causes an undue hardship (which the employer then does not need to implement), but as we might expect, the resource document does not necessarily provide any enlightenment as to what point requests for intermittent leave or repeated extensions of leave actually pose an undue hardship.  In determining undue hardship, EEOC states that employer may consider the following:
    • the amount and/or length of leave required (for example, four months, three days per week, six days per month, four to six days of intermittent leave for one month, four to six days of intermittent leave each month for six months, leave required indefinitely, or leave without a specified or estimated end date);
    • the frequency of the leave (for example, three days per week, three days per month, every Thursday);
    • whether there is any flexibility with respect to the days on which leave is taken (for example, whether treatment normally provided on a Monday could be provided on some other day during the week);
    • whether the need for intermittent leave on specific dates is predictable or unpredictable (for example, the specific day that an employee needs leave because of a seizure is unpredictable; intermittent leave to obtain chemotherapy is predictable);
    • the impact of the employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner (for example, only one coworker has the skills of the employee on leave and the job duties involved must be performed under a contract with a specific completion date, making it impossible for the employer to provide the amount of leave requested without over-burdening the coworker, failing to fulfill the contract, or incurring significant overtime costs); 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.

Insights for Employers

This new resource doesn’t necessarily clear up the particularly troublesome issues for employers.  And as my friend, Dan Schwartz, points out, the resource does nothing to address abuse of leave or whether an employer can finally say “enough leave is enough.”  The resource also does not address the fact that a request for leave as an accommodation must be reasonable and effective in helping the employee return to work.  In footnote 5 of the document, EEOC presumes that an employee’s request is reasonable.  Yet, that’s a far cry from the day-to-day reality employers face. Indeed, employers would argue that the majority of leave requests are not reasonable because the period of time (or multiple extensions) requested would not be effective to return the employee to work.

That all said, there are plenty of really good, practical takeaways for employers in this new EEOC resource:

1.  Employers Can Obtain Critical Medical Information from The Employee’s Health Care Provider to Help Us Make Decisions on Leave Requests.  EEOC outlines for employers the information we can obtain from the employee’s health care provider (with the employee’s permission) before making a decision on an employee’s leave request:

  • the specific reason(s) the employee needs leave (for example, surgery and recuperation, adjustment to a new medication regimen, training of a new service animal, or doctor visits or physical therapy);
  • whether the leave will be a block of time (for example, three weeks or four months), or intermittent (for example, one day per week, six days per month, occasional days throughout the year); and
  • when the need for leave will end

Additionally, EEOC makes clear that employers may specifically ask the health care provider to respond to questions drafted by the employer and designed to enable the employer to understand: 1) the need for leave; 2) the amount and type of leave required; and 3) whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave).

As part of my CALM service (see information on CALM here), I have drafted model correspondence for employers to use in these situations.  Please email me if you’re interested.

2.  If an Employee Asks for An Extension of ADA Leave, Employers Can Obtain Even MORE Information.  According to EEOC, if an employee requests additional leave that will exceed an employer’s maximum leave policy or is continuous in nature, the employer should again engage in an interactive process, including obtaining from the health care provider:

  • Medical documentation specifying the amount of the additional leave needed;
  • The reasons for the additional leave;
  • Why the initial estimate of a return date proved inaccurate; and
  • Information the employer considers relevant in determining whether the requested extension will result in an undue hardship

3.  Engaging the Employee in the ADA’s Interactive Process is Essential.  Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between!  When a client calls me for guidance on whether they can deny leave or terminate an employee after he or she has asked for the second or third extension of leave (particularly when FMLA has already expired), I ask the client for a detailed report of all the communications they have had with the employee regarding issues such as: a) the employee’s ability to perform his/her job; b) whether the employee likely will be able to return to work (and when); c) whether the requested leave will allow the employee to return to work immediately after the leave ends or very soon thereafter; d) whether there are other accommodations to help the employee return to work in a timely manner; and e) whether the employer has received any feedback from the employee’s physician about the above issues.  The EEOC’s decision to initiate litigation against an employer often hinges on whether the employer is to blame for the breakdown in the interactive process.  To minimize your exposure to liability, keep communicating with your employees!  The interactive process is essential.

when-is-enough-plenty-orange.jpg4.  Edit Your “Automatic termination” provisions NOW.  To the EEOC’s credit, the resource confirms that a policy providing for a maximum period of leave is not per se unlawful. For those employers that maintain these kinds of policies, however, I strongly encourage you to include in your leave policies language informing the employee that, if he/she needs additional unpaid leave as a reasonable accommodation because of a serious health condition, the employee should request it as soon as possible so that the employer may consider whether it can grant an extension.

Employers also should edit any correspondence used during the FMLA and other leave processes to incorporate the above language.  Your employment counsel should have these at the ready for you.

5.  Requiring Employees to Return to Work “Without Restrictions” or “100% Healed” is Unlawful.  All too often, I come across my clients’ policies or practices that require an employee to return to work only after they are 100% healed or without restrictions.

Here’s my periodic reminder to employers: STOP!  Enforcing these types of policies or requiring documentation that employees can return to work “without restrictions” takes on a tremendous amount of risk.  Far too much risk, in my opinion.  And as the EEOC clarifies in this resource document, this practice is unlawful.  Therefore, employers must re-evaluate these practices and implement policies that provide for individualized assessments of an employee’s ability to return to work with or without a reasonable accommodation under the ADA.

6.  Approach the Undue Hardship Analysis Carefully.  In an earlier post, I highlighted a presentation I gave with EEOC Commissioner Chai Feldblum that analyzes the approach employers should take when determining whether a leave request poses an undue hardship.  In that post, I offer a number of criteria you should consider when making this determination.  I encourage you to use these in conjunction with the suggestions offered by EEOC yesterday.

One more thing about undue hardship:  As EEOC previously has acknowledged in a separate guidance, a request for indefinite leave — meaning that an employee cannot say whether or when he/she will be able to return to work at all — will always be considered an undue hardship and, as the EEOC puts it, the request “does not have to be provided as a reasonable accommodation.”

 

draw the lineOne of the most difficult issues an HR professional or in-house employment counsel faces is how to deal with an employee who cannot return to work after FMLA leave expires. Is additional leave beyond 12 weeks required? The answer is almost always ‘yes.’ But how much leave are we obligated to provide? And what if the employee already has taken months of leave and doesn’t really know when she’ll return?

Take, for instance, a situation involving Penelope.  We’ll call her Pippy, for short.

Pippy suffered from sarcoidosis (inflammation of the lungs) and arthritis related to her condition. In September, she inquired about reducing her work schedule as an accommodation for her condition. Before her employer responded, however, Pippy suffered an injury that aggravated her medical condition.  The injury caused Pippy to take time off in December and January, and in February, she stopped working.

Between February and May, Pippy’s employer sent her multiple letters requesting documentation of the injury, but she didn’t respond. In June, her employer told her that she either had to report to work or provide medical documentation supporting her need for leave. Soon thereafter, Pippy sent her employer a “disability certificate” signed by her doctor indicating that the injury suffered a few months earlier left her “totally disabled” and she would remain so “indefinitely.” In contrast to her physician, however, the employee told her employer that she “hoped” to return by September 2007. Unwilling to wait any longer for Pippy’s uncertain return, her employer terminated her employment.

Like a typical, litigious former employee, Pippy filed suit.  It didn’t last long.  Pippy forgot one basic principle — an employer is never required to provide an employee an indefinite leave of absence. Particularly after the employer has already provided a reasonable amount of leave as an accommodation to help the employee return to work.

Like many others have done in similar situations, this court dismissed Pippy’s ADA claim in large part because her employer provided her a reasonable amount of leave (here, three months), and she could not provide a reasonable estimation of her return to work.  In other words, she was asking for an open-ended, indefinite leave of absence.  Courts almost always will support an employer’s right to terminate employment in instances like these.  Other employers should take note — when an employee cannot provide a reasonable estimate of when they will again be able to perform their essential job duties, their ADA claims skate on thin ice.  Minter v. District of Columbia (pdf)

But let’s not be too confident…

In situations like these, it is imperative that employers engage in the interactive process with the employee to determine whether any accommodation is available to help the employee return to work. When employers don’t, they risk significant liability under the ADA.

Just ask the Wayne Township Fire Department.  The Fire Department hired Kristine as a reserve paramedic in February 2009 and as a full-time paramedic a few months later, knowing that she had Type 1 diabetes. While on the job, Kristine’s blood-sugar levels dropped on two occasions while she was on duty — once while she was driving and again while she was caring for a patient in the back of an ambulance. Kristine told her supervisor and other officials what had happened.  Shortly thereafter, she was told she could not return to work without approval from the agency’s medical director, who refused to return her to work because she could not “guarantee” any further incidents. Declining to engage in any interactive process, the Fire Department simply terminated Kristine’s employment.

That cha-ching sound is the Fire Department’s cash register, which opened wide to the tune of $725,000 to pay Kristine for its ADA violations and her attorney’s fees.  Rednour v. Wayne Township Fire Dept. (pdf)  One of the “fundamental” issues for the jury’s verdict in favor of Kristine? The mere fact that the employer did not engage in the ADA’s interactive process.

Think about it: Three-quarters of a million dollars simply because the employer failed to engage in the interactive process.  What a waste.

In her analysis of Kristine’s case, Miriam Rosen identifies several steps that an employer should take to identify accommodations in situations like these.  I really liked her suggestions, so I paraphrase them here:

  • Obtain information from the employee and employee’s physician (through the employee, of course) to understand the medical condition and how it affects the employee’s ability to perform essential job functions.
  • Identify the essential job functions that the employee must perform with or without an accommodation. Up-to-date job descriptions are key to this process.
  • Do not make assumptions about whether the employee can or cannot perform the essential job functions. Rather, engage in a dialogue with the employee about what modifications would help the employee perform the essential job functions. Consider whether other options for accommodation are available if the suggested accommodations are not reasonable.
  • Determine if it is possible to provide reasonable accommodations that allow the employee to perform the essential functions of the position. Remember that accommodations such as a leave of absence or, if available, light duty may allow the employee to perform job functions within a reasonable time.
  • If an accommodation is identified, put it into place. If it is not possible to provide a reasonable accommodation, communicate that to the employee as well and any employment related consequences.
  • Document the process and outcomes to establish that obligations to engage in the interactive process have been met.

Engage in a meaningful interactive process. Conduct an individualized assessment. Be creative in providing accommodations to keep the employee on the job.  Avoid liability.

Easier said than done, right?

webinar1.jpgThanks to those who attended my webinar last week on FMLA and ADA Overlap Issues.  If you missed the program, you can access the webinar here.  Our PowerPoint from the webinar can be downloaded here (pdf).

In a mere hour plus, Sara Elder, (Division Vice President, Fair Employment & Compliance, for Sears Holdings Management Corporation) Matt Morris (Vice President at ComPsych) and I covered a number of FMLA and ADA overlap conundrums, such as:

  • Handling an employee’s request not to work overtime or more than eight hours in a day
  • Managing an employee’s sporadic, yet frequent absences after the employee exhausts FMLA leave
  • Responding to an employee’s request for a new supervisor due to stress caused by the workplace
  • How many extensions of leave is an employer legally obligated to provide after an employee exhausts FMLA leave

And we sang a Thanksgiving jingle. Which, of course, was god-awful. Thankfully, this can be skipped over in the recording.

During the webinar, some common themes emerged:

  • When a triggering event occurs (e.g., a request for leave), the interactive process is paramount.  The employee’s request must always be taken seriously, and it is critical that the employer engage the employee to determine whether any accommodations exist that would enable the employee to perform the essential functions of his job. We outlined what this engagement should look like.
  • The determination regarding whether a requested leave must be granted as a reasonable accommodation requires a fact-intensive inquiry.  We provided attendees a very specific approach to handling requests for leave as a reasonable accommodation, focusing on: 1) how an employer should deal with vague and/or non-responsive information from the employee and the health care provider; and 2) how an employer can identify the undue hardship on the employer’s operations as a result of the employee’s continued absence.  To borrow a phrase from Sara during the webinar, “leave is not a destination . . . it’s a tool to help the employee get back to work.”  Well said.
  • An employer absolutely can insist on an employee’s regular and reliable attendance. However, where the FMLA and ADA are implicated, how you communicate and document your attendance expectations sets the foundation for taking appropriate and lawful personnel actions at a later time.  The path is full of potholes, however, so we recommended an approach to maneuver around those landmines.
  • Beware of automatic termination policies & examine “no fault” attendance policies.  Although these policies are not per se illegal, we discussed how to practically and lawfully implement them in your workplace.
  • When it comes to leave and reasonable accommodations, don’t assume a leave of absence is the only option.  We highlighted considerations for alternative accommodations, including reassignment.

Thanks again to those who attended the webinar. I look forward to your feedback on the issues we discussed. Feel free to post a comment here or email me at jsn@franczek.com.

webinarIt’s Webinar Time!

When managing an employee with a medical condition, the issues involved regularly implicate the FMLA or ADA — or both. Using interactive case studies, we will address critical FMLA and ADA compliance considerations when dealing with the most difficult employee leave and accommodation scenarios.

Please join us on Thursday, November 12 (12:00 – 1:15 p.m. central time) for “Where ADA and FMLA Overlap:  Leaves, Accommodations and Headaches, Oh My!” I will be joined by Sara Elder, (Division Vice President, Fair Employment & Compliance, for Sears Holdings Management Corporation) and Matt Morris (Vice President at ComPsych).

And the best part? It’s FREE!  Click here to register for this complimentary webinar. When you register, please take a moment to tell us your most burning FMLA and ADA questions — we’ll weave the best you have into our presentation.

During the webinar, Sara, Matt and I will highlight the most difficult FMLA/ADA overlap issues employers face and identify practical solutions to help employers stay compliant. Among other topics, we will address:

  • Requests that implicate the FMLA and ADA and whether leave and/or workplace accommodations are necessary
  • Employee requests for a “less stressful position” – is it an FMLA or ADA issue?
  • Examine the roles of HR and managers and provide tools and best practices for effective communication during the leave management and accommodation processes
  • ADA Intermittent leave!?! Do we have to?
  • When discussing “reasonable accommodations,” what does “reasonable” mean? Reasonable to whom?
  • The age old question: When FMLA ends, how much additional leave must an employer provide before terminating the employee?

This session promises to be practical and fun. As has become our custom, we might even throw in a Thanksgiving tune to finish things off.  Click here to register for this complimentary webinar. We look forward to your participation. In the meantime, please email me at jsn@franczek.com with any questions (within the topics above) that you would like us to address.

This program has been submitted to the HR Certification Institute for review. For more information about certification or recertification, please visit the HR Certification Institute website at www.hrci.org.

Illinois MCLE credit also will be available to attorneys attending the program. For attorneys in states other than Illinois, we will provide proof of attendance, but CLE credit will be governed by your particular state’s rules.

Looking forward to dining on FMLA and ADA with you.

no restrictionsDo you know what happens when you maintain a policy or practice that requires an employee to return to work without restrictions or “100% healed”?  You pay.  A lot.

Just ask Brookdale Senior Living Communities. Brookdale employed Bernadine, who suffered from fibromyalgia. According to the EEOC, Brookdale refused Bernadine’s accommodation requests for a temporary modified work schedule, an ergonomic chair, and adjustments to the lighting in her office.

The EEOC also alleged that the Company required Bernadine to remain on “full FMLA until she [was] fully released.”  In other words, she could only return if she was able to perform her job without any restrictions or accommodations. Brookdale later terminated Bernadine, contending that the employee caused a breakdown in the reasonable accommodation process.

The EEOC later brought suit on behalf of Bernadine, claiming that the Company’s failure to accommodate and its alleged requirement that Bernadine return “fully released” violated the ADA.  Access the EEOC’s lawsuit here.

Of course, these are simply the EEOC’s allegations, and we’ll never get to the truth, since Brookdale and EEOC agreed to settle the case before any discovery occurred.  As part of the resolution, as explained in an EEOC press release, Brookdale is required to:

1.  Pay $112,500 to Bernadine as alleged back pay and alleged compensatory damages.

2.  Train all local employees and managers on the ADA’s requirements, including the need to provide reasonable accommodation to qualified individuals with disabilities.

3.  Report to the EEOC if there are any complaints of disability discrimination or retaliation.

What’s the Problem with a “Fully Released” Approach? 

Whether or not Brookdale engaged in the conduct alleged by EEOC, this scenario is instructive. When employers require that employees be “fully released” or “100% healed” before returning to work, the far majority of courts have found that these policies and practices discriminate against employees with disabilities who may be able to perform the essential functions of their position with or without a reasonable accommodation.  To be clear, the ADA requires employers to make an individualized assessment when deciding whether an employee can return.  When employers implement a “100% healed” policy, most courts find that employers improperly bypassed the individualized assessment process.  Under these policies, the employer simply presumes that the employee is unable to perform the duties of his or her job without properly considering whether the employee’s restrictions can be accommodated.  And such an approach raises the ire of the EEOC.

At a minimum, the problem with this practice is two-fold: 1) it bypasses the process requiring an employer to make an individualized assessment under the ADA to determine whether an accommodation can be provided to help the employee return to work; and 2) it increases the chance that the employer will have found to perceive the employee as disabled.

Insights for Employers

All too often, I come across my clients’ policies or practices that require an employee to return to work only after they are 100% healed or without restrictions.  Here’s my periodic reminder to employers: STOP!

Enforcing these types of policies or requiring evidence that employees can return to work “without restrictions” takes on a tremendous amount of risk.  Far too much risk, in my opinion.  Therefore, employers must re-evaluate these practices and implement policies that provide for individualized assessments of an employee’s ability to return to work with or without a reasonable accommodation under the ADA.  In light of the EEOC’s recent litigation in this area, including the most recent one against Brookdale, this approach is imperative.

Naturally, this means employers also must do an effective job of obtaining medical information to which they are legally entitled so that they can make the most informed decisions about: 1) the employee’s ability to return to work; and 2) whether an accommodation may help the employee perform the job.  Thus, in the context of FMLA, employers should engage in a consistent and regular practice of requiring all employees returning from FMLA leave to provide a fitness-for-duty certification from their health care provider that confirms their ability to return to work and perform the essential functions of their job, with or without a reasonable accommodation, and inviting a conversation about what assistance they might require to return to work.  If you remember the report of my presentation with EEOC Commissioner Chai Feldblum last year, this communication is critical to remain compliant, and it should come early and often.

Employment-Word-Cloud-300x152This week, I had the pleasure of presenting with Department of Labor and EEOC officials on key developments out of Washington with respect to leave management and accommodations.  Our presentation was part of the annual conference of the Disability Management Employer Coalition. If you’re an employer and not a member of DMEC, you’re doing yourself a disservice.  Find out more about the organization here.

What’s on DOL’s Mind in 2015 and 2016?

Helen Applewhaite, the DOL’s Branch Chief for FMLA, presented on DOL enforcement initiates in the FMLA arena, and I offered comments from the peanut gallery on the practical impact on employers in light of these initiatives.  Here are the takeaways:

1.  DOL’s Focus on Systemic Compliance Issues is Top Priority.  The DOL is focusing its attention on systemic FMLA problems.  What this means is that DOL is broadening its FMLA enforcement to identify compliance problems that impact multiple employees and multiple employer locations.

EEOC has made a killing off investigating systemic issues, often leading to costly and burdensome investigations and litigation. For the foreseeable future, we can expect the same from DOL — broad and burdensome requests for information that cover multiple years and locations and a wide range of personnel actions.  Why?  Because this is already happening.  Over the past couple of years, the DOL’s information requests have covered a several- year period, and the agency typically requests data on all leave requests, grants and denials over that period, among a host of other subject areas. In a previous post, I included samples of information requests my clients have received in the past, like this burdensome one from the DOL.  Yep, they’re ugly.

What’s an Employer to do?  Friends, we must conduct self-audits of our FMLA processes and recordkeeping.  Now.  This means we must ensure that our FMLA policies, forms and correspondence are up to snuff, and that our FMLA processes are compliant.  In a previous post, I included specific recommendations on what our self-audit should look like.  [Shameless plug alert: I offer these self-audits through our CALM service.]

2.  Avoid these Common Errors.  Applewhaite identified several compliance problems that pop up regularly during DOL investigations:

  • Employers’ inability to recognize the need for FMLA leave and then disciplining employees for an absence that should be covered by FMLA
  • Failing to meet notice deadlines established by the FMLA
  • Failing to properly administer medical certification, including requests for recertification more frequently than permitted

The first bullet point is particularly troublesome, as I find that many front-line managers simply are not properly trained to recognize when an employee has provided sufficient facts to trigger the FMLA and to take appropriate steps to respond to the employee’s request.  In my experience, this is perhaps the single biggest problem for employers, as it creates easy liability.

As I’ve warned employers before, there are far too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA, or did not follow the FMLA regulations. Managers at all levels drastically increase your liability when it comes to FMLA when they are not trained in the FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.

3.  New Same-Sex Spouse Rule: Yawn!  Applewhaite briefly discussed the DOL’s recent regulatory change which edited the definition of spouse to include same-sex marriage.  As I told my DMEC friends, this regulatory change should not create any administrative concerns for us.  Simply put, we administer leave for a same-sex spouse in the same manner we administer leave for a heterosexual spouse.  Case closed.

For more information on the DOL’s same-sex spouse regulation changes, see my post here.

And the EEOC…

Pierce Blue, Attorney and Special Assistant to EEOC Commissioner Chai Feldblum, and I spent some time analyzing the implications of the Young v. UPS case, which expanded the potential for pregnant employees to secure workplace accommodations.

The EEOC has modestly edited its pregnancy discrimination guidance in light of the Young decision, but there is otherwise not much new news to share on the pregnancy accommodation front, as the lower courts generally have not yet applied the Young balancing test to real life situations.

That said, an early read on courts which have followed the Young reasoning suggests that employees may be given some latitude in advancing their case when alleging that the employer did not provide a requested accommodation during their pregnancy.  In one such case, Bray v. Town of Wake Forest, an employee defeated an early motion to dismiss her sex discrimination claim after her employer refused to assign her light duty work during her pregnancy.  The plaintiff, Erin Bray, was a Wake Forest police officer, and she provided a doctor’s note during her pregnancy limiting her to light duty positions. Shortly thereafter, Erin was terminated because she could not perform the essential functions of her position as a police officer.

The court refused to dismiss Erin’s sex discrimination claim, finding that, on two occasions, male police officers were allowed to perform light duty, apparently because they were injured on the job. In finding two other accommodations sufficient to survive a motion to dismiss, the court took a rather liberal reading of the Young case, but in any event, it indicates that even the slightest difference in how accommodations are distributed may very well breathe life into a gender discrimination claim.  Remember the key question raised by the Young court: “Why, when the employer accommodated so many, could it not accommodate the pregnant women as well?”

Apparently, in Bray’s case, “so many” may simply equal two.  If so, employers better watch out.

autismQ:  One of our employees, a front desk receptionist, maintains an erratic work schedule because she must attend to her autistic son.  In short, her son throws a tantrum at school if his mom does not personally drop him off and pick him up from school.  For instance, he hides under a table, refuses to participate, and becomes very aggressive when his mom doesn’t not drop him off and pick him up.

The difficulty we have is this — our employee not only misses the first hour of work and another hour in the middle of the work day, but she claims she needs the entire day off to attend to her son.  First, is autism a serious health condition under the FMLA? And if so, are there any limitations we can place on the employee’s need for FMLA leave in these situations?

A: These are not uncommon questions posed by employers, who wonder whether they are required to provide intermittent FMLA leave to an employee in this kind of situation.

To be clear, employers generally don’t deny that autism is a serious health condition (since it often is considered a disability under the ADA). However, employers struggle with an employee’s unpredictable attendance in situations where it presents a burden on staffing, like the example above.

Is Autism a Serious Health Condition?

Generally speaking, courts have found that autism is a serious health condition.

As we know, an otherwise eligible employee can take leave to care for a child with a serious health condition.  Under the FMLA regulations, a serious health condition  includes a period of incapacity which is “permanent or long-term due to a condition for which treatment may not be effective.” A “period of incapacity” includes the inability to attend school or perform other regular daily activities due to the serious health condition, including treatment or recovery.  29 C.F.R. § 825.114.

In the example above, there appears to be sufficient facts for a jury to conclude that the employee’s son likely suffers from a serious health condition because he is has a permanent medical condition rendering him unable to participate at school in certain situations.

If Autism is a Serious Health Condition, are there any limitations we can place on the employee’s need for leave?

Put aside the question about whether autism is a serious health condition, as that’s a definition over which the attorneys can argue.  What you’re really worried about is whether your front reception desk gets properly staffed and whether you have to accept your employee’s erratic schedule on days when she tells you she must attend to her son.  In short, there are not many limitations you can place on your employee if they need FMLA leave in these situations to care for her son.  But there are tools available to employers:

1.  Analyze the medical certification.  In many instances, the certification will articulate the kind of care the employee is required to provide to the autistic child.  Does the certification appear to cover the need for transport, drop off and pick up?  If it is unclear, follow the FMLA’s cure process to obtain the information you need.

2.  Rein in the excess time off.  Does the certification require your employee to take the entire workday off (or even a significant portion of the workday) for trips to school with her son at 8am and at 2pm?  If so, why does the certification make such a pronouncement?

Assuming the cert does not contain this information, the employer should consider having a candid conversation with the employee about the need for leave for the entire or even a significant portion of the workday.  Keep in mind that intermittent leave is required only where it is medically necessary. FMLA leave from work from the period of ~9am to 2pm does not appear to be medically necessary, so if you can’t come to an understanding with your employee as to the additional time during the workday, employers should require that the employee cure the certification (to obtain additional information about the need for leave), and clarify the certification, if necessary.

Hat tip: Thanks to Linda Croushore for suggesting that I address this question on my blog!