The EEOC is getting serious about helping disabled Americans. In early June, the agency held a public meeting on the use of leave as a reasonable accommodation. That move came just two weeks after the agency put its new ADA Amendments Act (ADAAA) regulations into effect.
EEOC’s view: No leave limits
At the June meeting, opinions differed sharply on whether an employer can satisfy its ADA obligations by implementing a neutral leave-of-absence policy that caps a maximum allowable leave. Examples might be:
- “Employees who do not return to work following a maximum of six months of leave will be presumed to have resigned.”
- “Employees will be entitled to a maximum of six months of unpaid medical leave in appropriate circumstances, and thereafter the company cannot hold the employee’s position open or guarantee a position to which the employee can return.”
John Hendrickson, the EEOC attorney who litigated the high-profile EEOC v. Sears case that resulted in a $6.2 million settlement, offered these observations:
- An inflexible period of disability leave, even if substantial, is not sufficient to satisfy an employer’s duty of reasonable accommodation.
- The appropriate length of leave under the ADA requires an individualized analysis—even when the employer has a generous fixed leave policy.
- Separating leave administration—like the administration of workers’ or disability benefits—from ADA administration is risky for employers.
- Clear lines of communication regarding reasonable accommodations are critical not only with employees on leave but also with their health care providers and supervisors.
Employers: We need certainty
-side attorney Ellen McLaughlin argued the employer’s position that leave-of-absence policies that set a maximum duration an employee can be away from work are a business necessity.
“The intent of these neutral leave programs is to provide employers with some level of control over their ability to manage their head count and business operations,” she said. “Employers know in advance how much time off an employee may take, and can track when an employee approaches that maximum in order to provide it an opportunity to begin planning coverage/replacement options sooner.”
I agree that neutral maximum leave policies give employers the necessary flexibility to run their businesses in the face of leaves of uncertain duration. The EEOC should consider the needs of the business community and provide greater guidance on this issue.
What employers can do
Employers need to be practical. The EEOC is aggressively pursuing businesses that enforce neutral leave policies to the detriment of disabled employees. Tread very lightly around this issue until the EEOC softens its position.
Unless you want your organization to end up in the EEOC’s crosshairs, I recommend remembering “A, E, I, O, You:”
Avoid leave policies that provide a per se maximum amount of leave, after which time an employee loses his or her job.
Engage in the interactive process with employees who need extended leaves of absence. That means gathering sufficient medical information and setting a definitive return-to-work date, documented by a medical professional.
Involve your attorney in the process of deciding when an extended leave crosses the line from a reasonable accommodation to an undue hardship.
Open your workplace to disabled employees to demonstrate to the EEOC that you take your ADA obligations seriously.
You should document all costs associated with any extended unpaid leaves (added overtime, temp workers, lost productivity, etc.) to help make your undue hardship argument.
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