Thanks to those who attended my webinar last week with Matt Morris on “Six Ways Your Managers Are Causing FMLA & ADA Leave Lawsuits, and How to Train Them to Stop.” A link to the recording can be accessed here (just requires providing some basic info about you) and the presentation PowerPoint can be downloaded here.

To those who attended, thank you.  To those who missed it, you still have time to access the recording.  As promised, Matt and I provided a road map of all the necessary issues to address in an FMLA training session, including case studies you can use with your managers.

In this session, we provided you material to train your managers in six key compliance areas:

  • The Space Case: The manager who should have known the employee put the manager on notice of the need for FMLA leave, but failed to do anything about it.  In most training sessions, you will spend most of your time here, since you want your managers to be able to recognize when an employee may need a leave of absence for a medical condition and what they should do with this information.
  • The Lazybones:  The manager who knew the employee needed a medical leave of absence, but failed to direct the employee’s request to the proper channels.  As a result, the employer fell out of compliance and risked FMLA liability.
  • The Head Stuck in the Book:  The manager who fails to recognize patterns of FMLA abuse, such as Monday/Friday absences, absences in conjunction with holidays, and when managers learn of information indicating that the employee is misusing FMLA leave.
  • The Oversharer:  The manager who responds inappropriately to an FMLA leave request, such as telling the employee “it’s not a good time to take leave,” or making a snide comment about an employee’s leave of absence in an email.
  • The Badgerer: The manager who requires an employee to perform substantive work while on FMLA leave or keeps bugging an employee when they should not be working while on FMLA leave.
  • The Troublemaker: The manager who tainted the termination decision by injecting his discriminatory tendencies into the decision-making.

Of course, we ended with a holiday jingle. So, I leave you with my warm regards for a Happy Holiday and peaceful New Year, and the lyrics to the holiday song “Oh Rest Ye Bumbling Managers” which we sung to the tune of “God Rest Ye Merry Gentlemen” by the Bare Naked Ladies (a version which you can listen to or skip on the recording!):

I hired a volatile manager, his name was Ross 

He’s always on a power trip, people call him “The Boss”

He tends to fire those with da gout or chronic IBS

Oh tidings of FMLA . . . FMLA . . . Oh tidings of FMLA

* * *

Ross told his secretary “It’s a bad time for medical leave”

Then he gave her a parting gift, a book called “No More Hysterectomy”

I’m worried what next slur he’ll use at our 3pm meeting

Oh tidings of FMLA . . . FMLA . . . Oh tidings of FMLA

* * *

This law is a wonder, this law is chore

It makes me scared to hire employees anymore

But if I don’t train (or fire) Ross, come tomorrow

I will find the DOL at my front door!

* * *

Thanks again to those who attended the webinar. I look forward to your feedback on the issues we discussed.

Happy Holidays!

Thanks to those who attended my webinar last week with Matt Morris on “Complying with the FMLA and ADA When Your Employee is Dealing with a Mental Health Condition.”  A link to the recording can be found here, and the presentation can be downloaded here.

To those who attended, thank you.  To those who missed it, you still have time to access the recording.  Matt and I covered a number of issues under both the FMLA and ADA when it comes to managing an employee dealing with a mental health condition.  In particular, we covered:

  • Managing your employee when their mental condition condition is affecting their performance.  Here, we outlined how an employer engages in a two-part conversation to address the issue — first, it’s a performance-based conversation, which allows you to highlight expectations and identify where the employee has fallen short of expectations; and second, it’s the interactive process, in which you engage in the employee in a conversation about what you can do as the employer to help the employee perform their job.  Through the use of characters such as Steve Carell, Pope Francis and Mr. Rogers himself, we offered you practical insight on how you structure these difficult conversations with your employees.
  • Whether an employer can force an employee on leave of absence when their mental health condition clearly is affecting their job but the employee refuses to accept it.
  • How much additional leave (if any) an employer must provide an employee dealing with a mental health condition when they have exhausted FMLA leave.  We analyzed the steps employers should take to obtain information, determine the employee’s ability to return to work and assess the hardship on your operations in deciding whether to grant additional leave or terminate employment.
  • Similarly, how to manage your employee when they are taking unscheduled intermittent leave and it’s affecting your staffing and operations.  Here, we provided practical tips to address these situations before they spiral out of control.
  • Finally, we provided guidance on when you should seek a fitness for duty for your employee and other tips on obtaining medical documentation where an employee’s mental health condition is at issue.

And has become a custom, we ended with a holiday jingle. So, I leave you with my warm regards for a Happy Holiday and peaceful New Year, and the lyrics to the holiday song “Oh Rest Ye FMLA Abusers” which we sung to the tune of “God Rest Ye Merry Gentlemen” by the Bare Naked Ladies (a version which you can listen to or skip on the recording!):

I woke up at 4:30 with a scratched cornea 

It was better than last week, I swore I had a hernia

Oh what excuse I could concoct to avoid my overtime

Oh, tidings of FMLA . . . FMLA . . .Oh, tidings of FMLA

* * *

My doctor’s note made clear I could take off whenever I’d like

That didn’t please my boss, who told me, “Buddy, Go take a Hike!”

I think I’ll find a lawyer, isn’t that the American Way?

Oh, tidings of FMLA . . . FMLA . . .Oh, tidings of FMLA

* * *

Law of Wonder, Law of Light

Law that will help me get out of work tonight

But if I’m not careful, come tomorrow, I’ll need a new worksite

* * *

Thanks again to those who attended the webinar. I look forward to your feedback on the issues we discussed.

Happy Holidays!

Cheers to the Seventh Circuit!

There may not be an issue that strikes more fear in the land of HR than how to deal with an employee who cannot return to work after FMLA leave expires. Is some additional leave beyond 12 weeks required? The answer is almost always ‘yes.’

But how much leave are we obligated to provide?

For ages, I’ve carefully counseled my clients on this issue, recognizing that the courts (and EEOC) have declined to offer any meaningful guidance on how much leave beyond FMLA employers are required to provide. Is it two months? Four? How ’bout six?

There has been no plausible answer. Until now.

In the matter of weeks, one rather influential federal appellate court has issued not one, but two decisions that set a far clearer path for employers to follow when deciding whether and how much additional leave they need to provide as a reasonable accommodation under the ADA. Let me quickly explain these cases and offer practical steps you should consider when analyzing an employee’s request for leave.

First Came the Severson case

Unless you’ve been securely wedged under a Human Resources rock over the past several weeks, you’ve been bombarded with alerts about the Severson case.

The facts of this case are fairly straightforward. Ray was employed at Heartland Woodcraft, and he suffered from a chronic back condition, which occasionally flared up and limited his ability to walk, bend, lift, sit stand, move and work. One such flare up caused Sugar Ray to take a continuous leave from work.  He asked for and was granted 12 weeks of FMLA leave.

Two weeks before his FMLA leave expired, Ray informed Heartland that his condition had not improved and that he would need surgery.  Heartland notified Ray the day before his surgery that his employment with Heartland would end when his FMLA leave expired the following day. However, it encouraged him to reapply for employment when he was able to return. As the story goes, he was ready to return several months later, but instead of reapplying, Ray filed an ADA lawsuit claiming, among other things, that his employer failed to provide a reasonable accommodation by granting him an extended leave of absence.

The ADA is Not a Leave of Absence Statute

In analyzing Ray’s ADA claim, the Seventh Circuit Court of Appeals acknowledged that a “brief” period of leave to deal with a medical condition could be an accommodation in some situations. But, the court also made clear that long-term leaves of absence fit securely within the “domain” of the FMLA, not the ADA. And in doing so, it set out a fairly bright-line rule:

Intermittent time off or a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work schedule. . . But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. To the contrary, the inability to work for a multi-month period removes a person from the class protected by the ADA.

Wow.  There is the new rule. A leave of couple of days or weeks may very well be required under the ADA. But a couple months?  No soup for you!  Severson v. Heartland Woodcraft (pdf)

As I shared with Law360 and Bloomberg BNA, it’s as if employers have been given a piece of the Holy Grail! For ages, we’ve searched for a more defined limit on how much leave an employer is obligated to provide under the ADA as a reasonable accommodation. This influential circuit court, at least, has defined this boundary for us.

Then Came the Golden case

Notably, weeks after the Severson case above was decided, the same appellate court doubled down on its position that the ADA was not a leave of absence statute and that leave beyond a couple of weeks simply is not required under the ADA.

Marytza’s case also is simple fact pattern.  She suffered from breast cancer, requiring surgery and an extended leave. As her 12 weeks of FMLA leave was about to expire, she sought an unspecified period of leave, which could have lasted as much as six months.  Her employer, the Indianapolis Housing Agency, declined to grant more than four additional weeks of leave. When Marytza could not return from work after 16 weeks off (12 weeks of FMLA leave and 4 additional weeks), her employer terminated her employment.

Again, the court went right back to its Severson decision issued weeks earlier, finding that

A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA . . .[and that such a request] removes an employee from the protected class under the ADA.  Golden v. IHA (pdf)

Insights for Employers

These two cases are, in many respects, a game changer.  But what are the practical takeaways?

1. Where Can I Get Aggressive?  For my clients in Illinois, Wisconsin and Indiana (states covered by the 7th Circuit Court of Appeals), I clearly am being more aggressive in the manner in which I handle ADA leave requests. This court’s guidance is golden [no pun intended]: A few days or weeks of leave is likely required under the ADA. But one that is open-ended and spans multiple months simply is not.

2. For clients in other states, I’m using these cases as strong authority, but I’m not slamming the gas pedal.  Let’s remember: 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 (after FMLA has expired), I ask the client for feedback on 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.

3. Approach the Undue Hardship Analysis Carefully.  In an earlier post, I highlighted a presentation I gave some time back 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 this analysis when determining whether a leave of absence is negatively impacting your operations.

4. A Quick Word of Caution about Intermittent Leave.  Notably, in both the Severson and Golden cases, the employee’s return to work date was unclear, which often is the case.  The court in Severson left open the possibility that a shorter leave period — indeed, intermittent leave — might actually be more palatable as a reasonable accommodation under the ADA.  All the more reason to tread carefully and conduct an individualized assessment of each leave request to determine whether a leave of absence is reasonable and effective in helping the employee return to work.

Credit: PDF of article reproduced with permission from Daily Labor Report (October 19, 2017). Copyright 2017 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>

Photo credit: Warner Bros.

ConfusedThere is a hot debate brewing over the tantalizing question, “Does a request for FMLA leave also constitute a request for a reasonable accommodation under the ADA?” The worlds of FMLA and ADA clash!

Surely, this question ranks up there with life’s unanswered questions.  You know, questions like: When does it stop being partly cloudy and start becoming partly sunny? Or why is sandwich meat round when bread is square?

This FMLA/ADA conundrum apparently means a lot to Fredrick Capps. Fred was a mixing technician for Mondelez International, the company which brings us Oreo cookies and other yummy treats.  Fred had a degenerative bone disease that required intermittent leave for flare-ups that affected his ability to walk, sit and stand.  He was certified for intermittent leave, but the Oreo cookie company became skeptical after it learned that Fred had been arrested for driving under the influence on one of the days he called in sick.  A logical concern, of course.

The company fired Fred, and he sued.  He filed a slew of claims, including an allegation that the employer violated the ADA when it did not consider Fred’s leave request as a plea for a reasonable accommodation. The trial court quickly rejected Fred’s ADA claim, finding that a request for FMLA leave is not alternatively a request for a reasonable accommodation under the ADA.  Capps v. Mondelez Global

HR professionals across the country must be breathing a sigh of relief.

But are they?  

As I noted in Bloomberg BNA’s Daily Labor Report earlier this week (pdf accessed here), employee requests for medical leave may or may not double as requests for an ADA reasonable accommodation. But it really is a distinction without a difference, and employers should not get caught up in the legal mumbo jumbo.  In all my time representing employers, an HR Director or in-house counsel has never asked me to help them decide whether a leave request should double as an accommodation request. In the real world, it doesn’t matter!  

From a practical standpoint, when an employee requests leave from the job, the employer should use it as an opportunity to learn the basics about the employee’s medical condition and how it affects his/her ability to do the job. Armed with this information, we can then engage the employee in a more informed dialogue about temporary adjustments we might be able to make to keep the employee on the job. Conversely, if we determine adjustments can’t be made, a leave of absence may very well be the only option.

Let the attorneys argue over whether a request for FMLA leave doubles as a reasonable accommodation. In the meantime, we need not be afraid of the interactive process. In working diligently at creative, workable solutions to help keep employees on the job, employers will maintain the healthiest and most productive workplaces.

Credits: PDF of article reproduced with permission from Daily Labor Report, 137 DLR C-1, (July 18, 2016). Copyright 2016 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>

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 CorporationMatt 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.