EEOC-bannerLast week, I had the pleasure of co-presenting with EEOC Commissioner Chai Feldblum on the topic of “leave” as a reasonable accommodation under the ADA.  Our presentation was part of an FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition. You can access BNA’s coverage of our presentation here (pdf). Naturally, Cmmr. Feldblum and I aren’t going to agree on everything when it comes to the ADA, since I represent employers and Cmmr. Feldblum is a sitting EEOC Commissioner. But when it comes to employer compliance with the ADA, we found much to agree on during this session.

From the employer perspective, there were several key takeaways from Commissioner Feldblum’s comments about an employer’s obligation to provide leave as a reasonable accommodation under the ADA:

  1. The ADA’s interactive process is critical in both timing and content.  Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between!  Often, the EEOC’s decision to initiate litigation against an employer depends on whether the employer is to blame for the breakdown in the interactive process.  Cmmr. Feldblum emphasized the importance of engaging the employee early on in their leave and maintaining regular contact with and them to assess the continued need for leave or a different workplace accommodation.
  2. Employers should have an “interactive process” with supervisors, too!  Noting that employers need to “jolt the supervisor” out of an “I’ve always done it this way” mindset, Cmmr. Feldblum reminded employers that supervisors can create ADA liability because they often deal directly with the employee first when it comes to accommodation requests.  Where supervisors “just blow [federal laws like the ADA] off,” they create liability. Yet, when the entire goal is to keep the disabled individual “attached to the labor force,” she advised employers to engage supervisors about their role in the process and how the employer might offer assistance to the employee to help them perform their job.  You need not read between the lines here: supervisor training is critical in maintaining FMLA and ADA compliance.
  3. Employers can (and should) assess “undue hardship” earlier in the process.  As we know, the ADA requires an employer to provide a reasonable accommodation to a qualified individual with a disability unless the accommodation causes an undue hardship on the employer. When it comes to leave, employers generally conduct the undue hardship analysis only after the employee has exhausted FMLA leave and is requesting additional leave as an accommodation. Cmmr. Feldblum noted that employers have the flexibility as early as “day one” of 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 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, Cmmr. Feldblum’s comments helped clarify the issue.  (In my opinion, her comments are consistent with the spirit of the Enforcement Guidance, too.)
  4. There are several key factors to consider when establishing that an employee’s request additional leave would pose an undue hardship, and an employer should use them.  As I have mentioned in previous blog posts on this topic, when deciding whether to grant an employee additional leave as a reasonable accommodation, it is critical that employers identify how the requested leave actually impacts their business and operations. Cmmr. Feldblum confirmed that the several factors I identify below can help employers determine whether the requested leave of absence poses an undue burden.  As noted in a previous survey (pdf) conducted by Mercer, these factors often are quite helpful in guiding an employer’s decision to grant or deny leave:

– 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 customer service and increased customer dissatisfaction

– Deferred projects

– Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees

– Increased stress on overburdened co-workers

Interestingly, Cmmr. Feldblum pooh-poohed the idea that lower employee morale should be a factor in the undue hardship analysis.  I slightly disagree: if an employer can establish that there is lower employee morale because several of the other above factors exist, employee morale can and should be a factor taken into account in the undue hardship analysis.   However, morale should never be advanced as the sole reason or even one of the main reasons for undue hardship.

Finally, I asked Cmmr. Feldblum during our session whether we could expect any official EEOC enforcement guidance on the issue of “leave” as a reasonable accommodation.  (As you may recall, there were rumblings EEOC would issue this guidance several years ago.)  She deferred to EEOC Chair Jacqueline Berrien, suggesting that employers should encourage the EEOC Chair to issue the guidance.

Anyone up for a letter-writing campaign?


BNA article above reproduced with permission from Daily Labor Report, 64 DLR A-4 (March 3, 2014). Copyright 2014 by The Bureau of National Affairs, Inc.