additional leave as reasonable accommodation

When: Wednesday, December 13 (12:00 – 1:15 p.m. central time)

Online registration:  Click Here

Employers are increasingly managing employees who suffer from mental health conditions such as depression, stress, and panic attacks. Studies show that these mental health conditions are leading to increased use of FMLA leave. Administering FMLA leave and ADA accommodations in these situations can be particularly frustrating. Unlike an easy-to-notice need for maternity leave or even a knee replacement, mental health conditions often are silent and manifest themselves on a moment’s notice. As a result, these situations lend themselves to FMLA abuse and increase the risk of FMLA and ADA violations if they are not handled properly.

Please join me on Wednesday, December 13 (12:00 – 1:15 p.m. central time) for “Complying with the FMLA and ADA When Your Employee is Dealing with a Mental Health Condition.”  I will be joined by my friend and fellow FMLA nerd, Matt Morris, Vice President at ComPsych.

In this complimentary webinar, Matt and I will cover a series of difficult FMLA scenarios involving mental health conditions and offer practical strategies to address them, all in an effort to increase your FMLA compliance. We will cover topics such as:

  • At what point has an employee put you on notice of the need for FMLA leave because of a mental health condition?
  • Best practices for employers when an employee fails to return medical certification or turns it in late – and it may be due to their mental health condition
  • What ADA considerations must you keep in mind when considering additional leave or other accommodations for a mental health condition?
  • Does the ADA provide a “Get out of Jail Free” card when an employee’s mental health condition affects work performance?
  • What, if anything, should HR/legal tell the employee’s managers about the employee’s medical condition?

This session will be practical and fun, and back by popular demand, I already have my FMLA-themed song picked out to serenade our guests!

This program has been submitted to the HR Certification Institute and SHRM for review and credit. Illinois Continuing Legal Education 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.

when-is-enough-plenty-orange.jpgWhen it comes to leave as a reasonable accommodation after FMLA leave is exhausted, employers have been conditioned to simply believe: inflexible leave policies bad, flexible leave policies good.  In fact, many of us have become so good at this conditioning it would make Ivan Pavlov proud [you know, the guy who conditioned his dog to salivate when food was presented].  

Now, a court is telling us that inflexible leave policies might actually protect disabled individuals in the workplace?  Tell me more.

The Facts

Grace, an assistant professor at Kansas State University, was a good instructor who was having quite a difficult year.  After signing a one-year contract to teach but before fall classes started, she received news that she had cancer and required treatment.    She requested and was granted a six-month leave of absence.  As that leave period drew to a close and spring semester was about to begin, she asked for more time off, promising to return by the summer term.

One hurdle stood in Grace’s way: the University’s inflexible leave policy limiting employees to no more than six months of leave.  When Grace could not return, KSU terminated her employment.  Grace sued, complaining that denying her more than six months’ leave violated the Rehabilitation Act (a statute identical in all respects to the ADA).

The Ruling

The trial court quickly dismissed Grace’s legal claims and a federal appellate court reviewing the decision agreed with the dismissal.  Why?  The appellate court explained it this way.  If an employee needs a “brief” absence from work, it may be “legally required” so that the employee can perform their essential job duties.  However, anything longer likely is not defensible:

It perhaps goes without saying that an employee who isn’t capable of working for so long isn’t an employee capable of performing a job’s essential functions — and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation. After all, reasonable accommodations — typically things like adding ramps or allowing more flexible working hours — are all about enabling employees to work, not to not work.

So, how do you draw a line between a “brief” respite and a leave period that is “so long”?  Initially, it depends on the essential duties in question, the nature and length of the leave sought, and the impact on fellow employees. For example, “taking extensive time off may be more problematic, say, for a medical professional who must be accessible in an emergency than a tax preparer who’s just survived April 15.”

This case is chock-full of so many juicy one-liners that it might be the ADA’s version of The Godfather. [Well, not really, but you know how excited I can get about this stuff.]  

Judge for yourself the court’s musings:

It’s difficult to conceive how an employee’s absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.

Or this one:

[Grace’s] is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying
reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.

And it even found a way to turn the EEOC’s own words on itself:

The [EEOC] expressly states [in its enforcement guidance on reasonable accommodations] that an employer does not have to retain an employee unable to perform her essential job functions for six months just because another job she can perform will open up then. An employer doesn’t have to do so much, the EEOC says, “because six months is beyond a reasonable amount of time” . . .  Here then the EEOC seems to agree with our conclusion that holding onto a non-performing employee for six months just isn’t something the Rehabilitation Act ordinarily compels. (My emphasis)

Dang!  Glad I was not on the other side of that smack down.  Read the opinion here (pdf): Hwang v. Kansas State Univ.

Inflexible Leave Policies Actually Protect the Disabled?

The court didn’t stop there, suggesting that an “inflexible” six month leave policy actually tends to protect the rights of the disabled, reasoning that these policies ensure that “disabled employees’ leave requests aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion and less transparency.”

As a result, the court opined that a six-month leave policy is “more than sufficient to comply with the Act in nearly any case.”

Insights for Employers

Before employers start breaking out Marlon Brando’s whiskey and amaretto, let’s not crown this decision just yet.  On one hand, its reasoning is of tremendous value to employers, who collectively have been yearning for guidance on how much leave they have to provide their employees before termination becomes an option.  In short, what we learn from this decision is that a six-month leave of absence will almost always satisfy the requirements of the ADA/Rehabilitation Act.  That’s good news.

On the other hand, this is the opinion of one appellate court (covering the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming).  If you placed this issue in front of a handful of other appellate courts, an employer could end up with a far different result — or one that was not nearly as precise as this court’s guidance.  Even this Corleone-like court hedged its bets a bit, finding that some leave is usually required, and employers must avoid sham leave policies that are not consistently applied.  And the decision may cause us to lose sight of an important principle — to individually assess the situation of every employee so as to help return them to work.

Here are my takeaways from this latest court decision:

  1. Remain committed to the ADA’s interactive process.  As this court pointed out, a lengthy six-month absence is a generous one, but when that time is up, we still have an obligation to the ADA’s interactive process. Doing so helps us understand what the employee might need to return to work (even if it’s a brief leave of absence or an alternative leave of absence), and it acts as a strong repellent to EEOC-initiated conciliation and litigation.
  2. Consistently apply your “no-fault” leave policies.  The employer won here because there was no evidence that it treated employees differently when it came to extended leaves of absence.  In your own situation, are you granting one employee an extended leave of absence, but denying similar leave to another without any basis?  If so, that’s a problem, and this kind of evidence likely would have influenced the court differently here.
  3. Me thinks the EEOC better issue some guidance in this area.  Employers have been waiting years for reasonable guidance from the EEOC on leave as a reasonable accommodation.  If we get more court decisions like this one, they will render whatever guidance the EEOC  issues meaningless, as the EEOC’s take will have been trumped by far more meaningful (and better-reasoned) guidance from the courts.

How much is enough.jpgOne 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 required? What law applies and what are the obligations for an employer in this situation?

Despite the uncertainty of what additional leave the ADA obligates employers to provide, one general rule has always been clear — an employer is never required to provide an employee an indefinite leave of absence.

Never?  After a decision handed down by New York’s highest state court last month, even this general rule has been called into question.

The Facts and Court Ruling

Giuseppe, a bank executive for Intesa Sanpaolo, took leave for a number of medical issues, including major depression.  After he had been on leave for almost five months, Intesa contacted him to inquire whether he intended to return to work or abandon his position. Giuseppe’s attorney responded that Giuseppe:

has not at any time evinced or expressed an intention to ‘abandon his position.’ Rather, he has been sick and unable to work, with an uncertain prognosis and a return to work date that is indeterminate at this time.

Intesa responded by terminating Giuseppe’s employment.

When Giuseppe later brought suit aleging violations of New York state and New York City law, the employer appropriately argued that Giuseppe requested an indefinite leave, which of course is not a reasonable accommodation under any law.  Or is it?

In a blow to employers everywhere, the court held that NYC law shifted the burden of proof from to the employer to show that the accommodation requested by Giuseppe would impose an undue hardship on the bank.  In other words, at least in New York City, there is no accommodation — indefinite leave or otherwise — that is categorically excluded as a reasonable accommodation under the NYC law.  In refusing to dismiss the case, the court erased a bright-line rule that an indefinite leave of absence is not required and replaced it with a more obscure standard that indefinite leave will be required unless the employer can show either: 1) that the employee could not, with reasonable accommodation, satisfy the essential functions of the job; or 2) that the accommodation would result in an undue hardship on the company.  Romanello v. Intesa Sanpaolo (pdf)

Insights for Employers 

Giuseppe’s case should be an eye opener for employers.  At a minimum, it reminds us of our obligation to keep the interactive process alive and to establish undue hardship earlier in the discussion.  Intesa would have been in better shape if it had adhered to a few key principles:

  1. Engage your employee in the interactive process.  Intesa started the conversation off right by engaging the employee about his return to work.  But after learning that Giuseppe’s prognosis was uncertain, it ended the conversation. Not a good move, since there is plenty more to find out and discuss: What limitations does the employee have? What functions can he/can’t he perform? Are there any alternative modifications we can make to his job to help him get back to work? Have we discussed restructuring his position or temporarily relocating the employee to an open position in which he is qualified (until he’s able to return to his original position)?  Also, employers should require that their employee provide a report from their treating physician responding to these inquiries.
  2. Conduct an undue hardship analysis and use this information in the interactive process. Before putting up a fight over whether to provide additional leave and how much to give, doesn’t it make sense first to analyze the impact the employee’s absence is having on your operations?  If it’s not impacting your operations, that should be a key factor in granting additional leave.  However, if it is impacting operations, you want to memorialize this earlier in the process.  In Intesa’s case, Giuseppe was an executive.  Therefore, it likely would not have been difficult to establish that his continued and “indeterminate” absence was wreaking havoc on the bank’s operations — for example, projects likely were being pushed off, decisions were being made by less capable employees, customer service was adversely affected by the downgrade in service, other managers were required to take on more work.  See my list of “undue hardship” questions to consider in one of my previous posts.  Once you have conducted this analysis, tell the employee about it.  Both in person (if possible) and in follow-up correspondence, tell the employee (tactfully and with empathy to his situation) the difficult position you’re in – that x, y, and z are occurring as a result of his absence – and, as a result, it is critical that you obtain a reasonable estimate of when he will be able to resume all essential functions of his employment so that you can better assess whether leave can be provided as a reasonable accommodation.  That’s what the employer did in a previous situation I wrote about, and the court endorsed the employer’s actions.
  3. Regardless of what state you’re in, you should maintain the same approach.  This case serves as a reminder that, depending on where your business is located, state or local law may exact even more stringent requirements than the ADA. However, your approach should remain the same, regardless of where you are. Communicate with your employee, engage them in the interactive process, and identify hardships early on so you can articulate them to your employee and make a more reasoned decision.