The EEOC issues updated guidance on ADA related leave – as if there weren’t enough updates to deal with in 2016!

May 10, 2016 at 11:57 pm | Posted in ADA, discrimination, EEOC, Employee, Employer, Employment Law, FMLA, harassment, Legal, New employment laws/amendments, retaliation | Leave a comment
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Directly from the EEOC’s website:

Employer-Provided Leave and the Americans with Disabilities Act[1]

Introduction

The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title I of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination on the basis of disability in employment and requires that covered employers (employers with 15 or more employees) provide reasonable accommodations to applicants and employees with disabilities that require such accommodations due to their disabilities.

A reasonable accommodation is, generally, “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”[2] That can include making modifications to existing leave policies and providing leave when needed for a disability, even where an employer does not offer leave to other employees.[3] As with any other accommodation, the goal of providing leave as an accommodation is to afford employees with disabilities equal employment opportunities.

The EEOC continues to receive charges indicating that some employers may be unaware of Commission positions about leave and the ADA. For example, some employers may not know that they may have to modify policies that limit the amount of leave employees can take when an employee needs additional leave as a reasonable accommodation. Employer policies that require employees on extended leave to be 100 percent healed or able to work without restrictions may deny some employees reasonable accommodations that would enable them to return to work. Employers also sometimes fail to consider reassignment as an option for employees with disabilities who cannot return to their jobs following leave.

This document seeks to provide general information to employers and employees regarding when and how leave must be granted for reasons related to an employee’s disability in order to promote voluntary compliance with the ADA. It is consistent with the EEOC’s regulations enforcing Title I of the ADA, as well as the EEOC’s 2002 Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (a link to the Guidance appears at the end of this document).

Equal Access to Leave Under an Employer’s Leave Policy

Employees with disabilities must be provided with access to leave on the same basis as all other similarly-situated employees. Many employers offer leave — paid and unpaid — as an employee benefit. Some employers provide a certain number of paid leave days for employees to use as they wish. Others provide a certain number of paid leave days designated as annual leave, sick leave, or “personal days.”

If an employer receives a request for leave for reasons related to a disability and the leave falls within the employer’s existing leave policy, it should treat the employee requesting the leave the same as an employee who requests leave for reasons unrelated to a disability.

Example 1: 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[4] 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 2: An employer permits employees to use paid annual leave for any purpose and does not require that they explain how they intend to use it. An employee with a disability requests one day of annual leave and mentions to her supervisor that she is using it to have repairs made to her wheelchair. Even though he has never denied other employees annual leave based on their reason for using it, the supervisor responds, “That’s what sick leave is for,” and requires her to designate the time off as sick leave. This violates the ADA, since the employer has denied the employee’s use of annual leave due to her disability.

Employers are entitled to have policies that require all employees to provide a doctor’s note or other documentation to substantiate the need for leave.

Example 3: An employee with a disability asks to take six days of paid sick leave. The employer has a policy requiring a doctor’s note for any sick leave over three days that explains why leave is needed. The employee must provide the requested documentation.

Granting Leave as a Reasonable Accommodation

The purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work. Leave as a reasonable accommodation is consistent with this purpose when it enables an employee to return to work following the period of leave. As noted above, requests for leave related to disability can often fall under existing employer policies. In those cases, the employer’s obligation is to provide persons with disabilities access to those policies on equal terms as similarly situated individuals. That is not the end of an employer’s obligation under the ADA though. An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer. (See below for a discussion of undue hardship.) That is the case even when:

the employer does not offer leave as an employee benefit;
the employee is not eligible for leave under the employer’s policy; or
the employee has exhausted the leave the employer provides as a benefit (including leave exhausted under a workers’ compensation program, or the FMLA or similar state or local laws).
Reasonable accommodation does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy. Also, as is the case with all other requests for accommodation, an employer can deny requests for leave when it can show that providing the accommodation would impose an undue hardship on its operations or finances.[5]

Example 4: An employer provides 10 days of paid annual leave and four days of paid sick leave each year to employees who have worked for the company fewer than three years. After three years, employees are eligible for 15 days of paid annual leave and eight days of paid sick leave. An employee who has worked for only two years has used his 10 days of paid annual leave and now requests six days of paid sick leave for treatment for his disability. Under its leave program, the employer must provide the employee with four days of paid sick leave but may refuse to provide paid leave for the two additional days of sick leave because the employee has not worked long enough to earn this benefit. However, the employer must provide two additional days of unpaid sick leave as a reasonable accommodation unless it can show that providing the two additional days would cause undue hardship.

Example 5: 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 6: An employer’s leave policy explicitly prohibits leave during the first six months of employment. An employee who has worked for only three months needs four weeks of leave for treatment of a disability and the employer tells him that if he takes leave, he will be fired. Although the employee is ineligible for leave under the employer’s leave program, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship. If the employer could provide unpaid leave without causing an undue hardship, but fires the individual instead, the employer will have violated the ADA.

Example 7: An employer’s leave policy does not cover employees who work fewer than 30 hours per week. An employee who works 25 hours per week and who has not worked enough hours to be eligible for leave under the FMLA requests one day of leave each week for the next three months for treatment of a disability. The employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship.

An employer may not penalize an employee for using leave as a reasonable accommodation. Doing so would be a violation of the ADA because it would render the leave an ineffective accommodation; it also may constitute retaliation for use of a reasonable accommodation.[6]

Example 8: An employee who is not covered by the FMLA requires three months of leave due to a disability. The employer determines that providing three months of leave would not cause undue hardship and grants the request. Instead of giving the employee an unsatisfactory rating during her next annual performance appraisal because she failed to meet production quotas while she was on leave, the employee’s supervisor should evaluate the employee’s performance taking into account her productivity for the months she did work.

Leave and the Interactive Process Generally

Communication after an Employee Requests Leave

As a general rule, the individual with a disability – who has the most knowledge about the need for reasonable accommodation – must inform the employer that an accommodation is needed. When an employee requests leave, or additional leave, for a medical condition, the employer must treat the request as one for a reasonable accommodation under the ADA. However, if the request for leave can be addressed by an employer’s leave program, the FMLA (or a similar state or local law), or the workers’ compensation program, the employer may provide leave under those programs. But, if the leave cannot be granted under any other program, then an employer should promptly engage in an “interactive process” with the employee — a process designed to enable the employer to obtain relevant information to determine the feasibility of providing the leave as a reasonable accommodation without causing an undue hardship.

The information required by the employer will vary from one employee to another. Sometimes the disability may be obvious; in other situations the employer may need additional information to confirm that the condition is a disability under the ADA. However, most of the focus will be on the following issues:

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.
Depending on the information the employee provides, the employer should consider whether the leave would cause an undue hardship (see below).

An employer may obtain information from the employee’s health care provider (with the employee’s permission) to confirm or to elaborate on information that the employee has provided. Employers may also ask the health care provider to respond to questions designed to enable the employer to understand the need for leave, the amount and type of leave required, and whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave). Information from the health care provider may also assist the employer in determining whether the leave would pose an undue hardship. An employee requesting leave as a reasonable accommodation should respond to questions from an employer as part of the interactive process and work with his or her health care provider to obtain requested medical documentation as quickly as possible.

Communication During Leave and Prior to Return to Work

The interactive process may continue even after an initial request for leave has been granted, particularly if the employee’s request did not specify an exact or fairly specific return date, or when the employee requires additional leave beyond that which was originally granted.

Example 9: An employee with a disability is granted three months of leave by an employer. Near the end of the three month leave, the employee requests an additional 30 days of leave. In this situation, the employer can request information from the employee or the employee’s health care provider about the need for the 30 additional days and the likelihood that the employee will be able to return to work, with or without reasonable accommodation, if the extension is granted.

However, an employer that has granted leave with a fixed return date may not ask the employee to provide periodic updates, although it may reach out to an employee on extended leave to check on the employee’s progress.

Example 10: An employee with a disability is granted three months of leave to recover from a surgery. After one month, the employer phones the employee and asks how the employee is doing and whether there is anything the employee needs from the employer to help the employee recover and return to work. That is an acceptable request for information. Additionally, a week prior to the end of the employee’s leave, the employer again reaches out to the employee to ask whether the employee is able to return to work at the end of leave and if any additional accommodations are required. This is also an acceptable request for information.

Maximum Leave Policies

The ADA requires that employers make exceptions to their policies, including leave policies, in order to provide a reasonable accommodation. Although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, they may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship.

Example 11: An employer covered under the FMLA grants employees a maximum of 12 weeks of leave per year. An employee uses the full 12 weeks of FMLA leave for her disability but still needs five additional weeks of leave. The employer must provide the additional leave as a reasonable accommodation unless the employer can show that doing so will cause an undue hardship. The Commission takes the position that compliance with the FMLA does not necessarily meet an employer’s obligation under the ADA, and the fact that any additional leave exceeds what is permitted under the FMLA, by itself, is not sufficient to show undue hardship. However, there may be legitimate reasons that establish undue hardship, such as the impact on an employer’s operations from the leave already taken and/or from granting additional leave. Also, the employer may consider whether other reasonable accommodations may enable the employee to return to work sooner than the employee anticipates, as long as those accommodations would be consistent with the employee’s medical needs.

Types of Maximum Leave Policies

Maximum leave policies (sometimes referred to as “no fault” leave policies) take many different forms. A common policy, especially for entities covered by the FMLA, is a flat limit of 12 weeks for both extended and intermittent leave. Other varieties exist though. Some maximum leave policies have caps much higher than 12 weeks. Others, particularly those not covered by the FMLA, set lower overall caps. Employers also frequently implement policies that limit unplanned absences. For example, a policy might permit employees to have no more than five unplanned absences during a 12-month period, after which they will be subject to progressive discipline or termination.

Employees with disabilities are not exempt from these policies as a general rule. However, such policies may have to be modified as a reasonable accommodation for absences related to a disability, unless the employer can show that doing so would cause undue hardship.

Example 12: An employer is not covered by the FMLA, and its leave policy specifies that an employee is entitled to only four days of unscheduled leave per year. An employee with a disability informs her employer that her disability may cause periodic unplanned absences and that those absences might exceed four days a year. The employee has requested a reasonable accommodation, and the employer should engage with the employee in an interactive process to determine if her disability requires intermittent absences, the likely frequency of the unplanned absences, and if granting an exception to the unplanned absence policy would cause undue hardship.

Communication Issues for Employers with Maximum Leave Policies

Many employers, especially larger ones and those with generous maximum leave policies, may rely on “form letters” to communicate with employees who are nearing the end of leave provided under an employer’s leave program. These letters frequently instruct an employee to return to work by a certain date or face termination or other discipline. Employers who use such form letters may wish to modify them to let employees know that if an employee needs additional unpaid leave as a reasonable accommodation for a disability, the employee should ask for it as soon as possible so that the employer may consider whether it can grant an extension without causing undue hardship. If an employer relies on a third party provider to handle lengthy leave programs, including short- and long-term disability leave programs, it should ensure that any automatic form letters generated by these providers comply with the employer’s obligations under the ADA.

Employers who handle requests under their regular leave policy separately from requests for leave as a reasonable accommodation should ensure that those responsible communicate with one another to avoid mishandling a request for accommodation. For example, an employer may hire a contractor to handle its long-term disability program, but have its human resources department handle all requests for leave as a reasonable accommodation. The employer should ensure that the contractor is instructed to forward to the human resources department, in a timely manner, any requests for additional leave beyond the maximum period granted under the long-term disability program, and to refrain from terminating the employee until the human resources department has the opportunity to engage in an interactive process. The human resources department should contact the employee as soon as possible to explain that it will be handling the request for additional leave as a reasonable accommodation, and that all further communication from the employee on this issue should be directed to that department.

An employer and employee should continue to communicate about whether the employee is ready to return to work or whether additional leave is necessary. For example, the employee may contact a supervisor, human resources official, or anyone else designated by the employer to handle the leave to provide updates about the employee’s ability to return to work (with or without reasonable accommodation), or about any need for additional leave.

If an employee requests additional leave that will exceed an employer’s maximum leave policy (whether the leave is a block of time or intermittent), the employer may engage in an interactive process as described above, including obtaining medical documentation specifying the amount of the additional leave needed, the reasons for the additional leave, and why the initial estimate of a return date proved inaccurate. An employer may also request relevant information to assist in determining whether the requested extension will result in an undue hardship.

Return to Work and Reasonable Accommodation (Including Reassignment)
Employees on leave for a disability may request reasonable accommodation in order to return to work. The request may be made by the employee, or it may be made in a doctor’s note releasing the employee to return to work with certain restrictions.

100% Healed Policies

An employer will violate the ADA if it requires an employee with a disability to have no medical restrictions — that is, be “100%” healed or recovered — if the employee can perform her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship.[7] Similarly, an employer will violate the ADA if it claims an employee with medical restrictions poses a safety risk but it cannot show that the individual is a “direct threat.” Direct threat is the ADA standard for determining whether an employee’s disability poses a “significant risk of substantial harm” to self or to others. If an employee’s disability poses a direct threat, an employer must consider whether reasonable accommodation will eliminate or diminish the direct threat.

Example 13: A clerk has been out on medical leave for 16 weeks for surgery to address a disability. The employee’s doctor releases him to return to work but with a 20-pound lifting restriction. The employer refuses to allow the employee to return to work with the lifting restriction, even though the employee’s essential and marginal functions do not require lifting 20 pounds. The employer’s action violates the ADA because the employee can perform his job and he does not pose a direct threat.

Example 14: An employee with a disability requests and is granted two months of medical leave for her disability. Three days after returning to work she requests as reasonable accommodations for her disability an ergonomic chair, adjusted lighting in her office, and a part-time schedule for eight days. In response, the company requires the employee to continue on leave and informs her that she cannot return to work until she is able to work full-time with no restrictions or accommodations. The employer may not prohibit the employee from returning to work solely because she needs reasonable accommodations (though the employer may deny the requested accommodations if they cause an undue hardship). If the employee requires reasonable accommodations to enable her to perform the essential functions of her job and the accommodations requested (or effective alternatives) do not cause an undue hardship, the employer’s requirement violates the ADA.

Issues Related to the Interactive Process and Return to Work

If an employee returns from a leave of absence with restrictions from his or her doctor, the employer may ask why the restrictions are required and how long they may be needed, and it may explore with the employee and his doctor (or other health care professional) possible accommodations that will enable the employee to perform the essential functions of the job consistent with the doctor’s recommended limitations. In some situations, there may be more than one way to meet a medical restriction.

Example 15: An employee with a disability has been out on leave for three months. The employee’s doctor releases her to return to work, but imposes a medical restriction requiring her to take a 15-minute break every 90 minutes. Taking a rest break is a form of reasonable accommodation. When the employer asks the purpose of the break, the doctor explains that the employee needs to sit for 15 minutes after standing and walking for 90 minutes. The employer asks if the employee could do seated work during the break; the doctor says yes. To comply with the ADA, the employer rearranges when certain marginal functions are performed so that the employee can perform those job duties when seated and therefore not take the 15-minute break.

If necessary, an employer should initiate the interactive process upon receiving a request for reasonable accommodation from an employee on leave for a disability who wants to return to work (or after receiving a doctor’s note outlining work restrictions). Some issues that may need to be explored include:

the specific accommodation(s) an employee requires;
the reason an accommodation or work restriction is needed (that is, the limitations that prevent an employee from returning to work without reasonable accommodation);
the length of time an employee will need the reasonable accommodation;
possible alternative accommodations that might effectively meet the employee’s disability-related needs; and
whether any of the accommodations would cause an undue hardship.

Reassignment

In some situations, the requested reasonable accommodation will be reassignment to a new job because the 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. The Commission takes the position that if reassignment is required, an employer must place the employee in a vacant position for which he is qualified, without requiring the employee to compete with other applicants for open positions.[8] Reassignment does not include promotion, and generally an employer does not have to place someone in a vacant position as a reasonable accommodation when another employee is entitled to the position under a uniformly-applied seniority system.[9]

Example 16: A medical assistant in a hospital required leave as a reasonable accommodation for her disability. Her doctor clears her to return to work but requires that she permanently use a cane when standing and walking. The employee realizes that she cannot perform significant parts of her job while using a cane and requests a reassignment to a vacant position for which she is qualified. The hospital violates the ADA if it fires the employee rather than reassigning her to a vacant position for which she is qualified and in which she could perform the essential functions while using a cane.

Undue Hardship

When assessing whether to grant leave as a reasonable accommodation, an employer may consider whether the leave would cause an undue hardship. If it would, the employer does not have to grant the leave. Determination of whether providing leave would result in undue hardship may involve consideration of 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.

In many instances an employee (or the employee’s doctor) can provide a definitive date on which the employee can return to work (for example, October 1). In some instances, only an approximate date (for example, “sometime during the end of September” or “around October 1”) or range of dates (for example, between September 1 and September 30) can be provided. Sometimes, a projected return date or even a range of return dates may need to be modified in light of changed circumstances, such as where an employee’s recovery from surgery takes longer than expected. None of these situations will necessarily result in undue hardship, but instead must be evaluated on a case-by-case basis. However, 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 does not have to be provided as a reasonable accommodation.

In assessing undue hardship on an initial request for leave as a reasonable accommodation or a request for leave beyond that which was originally granted, the employer may take into account leave already taken — whether pursuant to a workers’ compensation program, the FMLA (or similar state or local leave law), an employer’s leave program, or leave provided as a reasonable accommodation.

Example 17: An employee has exhausted her FMLA leave but requires 15 additional days of leave due to her disability. In determining whether an undue hardship exists, the employer may consider the impact of the 12 weeks of FMLA leave already granted and the additional impact on the employer’s operations in granting three more weeks of leave.

Example 18: An employee has exhausted both his FMLA leave and the additional eight weeks of leave available under the employer’s leave program, but requires another four weeks of leave due to his disability. In determining whether an undue hardship exists, the employer may consider the impact of the 20 weeks of leave already granted and the additional impact on the employer’s operations in granting four more weeks of leave.

Example 19: An employer not covered by the FMLA initially grants an employee intermittent leave for a disability. After six months, the employer realizes that the employee is using far more leave than expected and asks for medical documentation to explain the additional use of leave and the outlook for the next six months. The documentation reveals that the employee could need as much leave in the coming six months as he already used. As a result of the increased number of absences, the employer has had to postpone meetings necessary to complete a project for one of the employer’s clients, in turn causing delays in meeting the client’s needs. In addition, the employer has had to reallocate some of the employee’s job duties, resulting both in increased workloads and changes in work priorities for coworkers that are interfering with meeting the needs of other clients. Based on this information, the employer determines that additional intermittent leave as described in the doctor’s letter would be an undue hardship.

Leave as a reasonable accommodation includes the right to return to the employee’s original position. However, if an employer determines that holding open the job will cause an undue hardship, then it must consider whether there are alternatives that permit the employee to complete the leave and return to work.

Example 20: An employer is not covered under the FMLA. An employee with a disability requires 16 weeks of leave as a reasonable accommodation. The employer determines that it can grant the request and hold open the job. However, due to unforeseen circumstances that arise after seven weeks of leave, the employer determines that it would be an undue hardship to continue holding the job open. The job is filled within three weeks by promoting a qualified employee. Meanwhile, the employer determines that the employee on leave is qualified for the now-vacant position of the promoted employee and that the job can be held open until the employee returns to work in six weeks. The employer explains the situation to the employee with a disability and offers the newly-vacant position as a reasonable accommodation.

Additional Information

The EEOC has issued a number of documents that discuss how the ADA addresses various leave issues:

Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, http://www.eeoc.gov/policy/docs/accommodation.html (see “Leave” under “Types of Reasonable Accommodations”)
Enforcement Guidance on Pregnancy Discrimination and Related Issues, http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (see section II.B., ADA and Reasonable Accommodation)
The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964, http://www.eeoc.gov/policy/docs/fmlaada.html (see “Comparison of ADA and FMLA Leave” and “ADA Compliance When the FMLA Also Applies”)
Enforcement Guidance: Workers’ Compensation and the ADA, http://www.eeoc.gov/policy/docs/workcomp.html (see “Return to Work Decisions” and “Reasonable Accommodation”)
The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, http://www.eeoc.gov/facts/performance-conduct.html (see “Attendance issues”)
Additional information on the requirements of the ADA and section 501 of the Rehabilitation Act can be found on EEOC’s website, http://www.eeoc.gov.

[1] This document also applies to Federal employees protected under section 501 of the Rehabilitation Act, which has the same non-discrimination requirements as the ADA.

[2] 29 C.F.R. pt. 1630 app. §1630.2(o).

[3] Employers also may have to provide leave mandated by Federal, state, or local laws. For example, the Federal Family and Medical Leave Act (FMLA) requires employers with 50 or more employees to provide up to 12 weeks of leave per year to eligible employees. The FMLA covers private sector employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year. The law also covers local, state, or Federal government agencies, as well as public or private elementary or secondary schools, regardless of the number of employees. An eligible employee must: (1) have worked for a covered employer for at least 12 months, (2) have worked at least 1,250 hours during the 12-month period immediately preceding the leave, and (3) work at a location where the employer has at least 50 employees within 75 miles. More information on the FMLA is available at http://www.dol.gov/whd/regs/compliance/whdfs28.pdf. The EEOC previously issued a Fact Sheet concerning the interaction of FMLA, ADA, and Title VII rights, available at https://www.eeoc.gov/policy/docs/fmlaada.html.

[4] All examples assume that the employee’s medical condition meets the broad definition of disability found in the ADA. For more information on the definition of disability, see http://www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm.

[5] The examples used in this document assume that the leave requested is “reasonable,” as that term is defined under U.S. Airways v. Barnett, 535 U.S. 391 (2002), and as discussed in the EEOC’s Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, http://www.eeoc.gov/policy/docs/accommodation.html. The examples also assume that leave is the only effective reasonable accommodation, meaning it alone meets the employee’s needs. But, as part of the interactive process an employer may discuss with an employee whether an alternative form of reasonable accommodation would meet the employee’s needs. In some situations, a combination of leave and other reasonable accommodations (for example, part-time work, telework, a number of breaks, and removal of marginal functions) may enable an employee to return to work sooner and therefore require less leave.

[6] Penalizing an employee for use of leave as a reasonable accommodation may also raise a disparate treatment issue if the employer grants similar amounts of leave to non-disabled employees but does not penalize them.

[7] See consent decree in EEOC v. Brookdale Senior Living Communities, Inc. (D. Colo. No. 14-cv-02643-KMT)(resolved August 17, 2015). EEOC alleged that the company refused an employee’s request to return to work after leave for fibromyalgia because she was unable to return to work without restrictions or accommodations. See also consent decree in EEOC v. Americold Logistics (W.D. Ky. No. 4:12-cv-47-JHM)(resolved June 14, 2013). In this case, the EEOC alleged that the employer refused to explore or to provide reasonable accommodation that would allow an employee with chronic lumbar back pain to return to work and instead fired the employee because she was not 100% healed. See also Kauffman v. Petersen Health Care VII, LLC, 769 F.3d 958 (7th Cir. 2014)(permitting an employer to require that an employee be 100% healed would negate the ADA’s requirement that an employer provide reasonable accommodation if it enables an employee to perform his job).

[8] See Question 29 in EEOC’s Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, http://www.eeoc.gov/policy/docs/accommodation.html.

For more information on the requirements and limitations of reassignment, see EEOC’s Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, http://www.eeoc.gov/policy/docs/accommodation.html.

From Hultman Sensenig + Joshi:  So many changes this year for employers from the various agencies – DOL and EEOC have issued many new policies for employers to review and incorporate into handbooks and manuals.  The EEOC’s Guidance is informative and helpful as the examples are concrete and provide some real insight into how the EEOC views ADA related leave.  Reading this blog does not result in an attorney client relationship between the reader and this blogger, nor is legal advice being given by the sharing of the educational information found in this blog.  

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Rudolph the Red-Nosed Reindeer – a study in employment law

December 9, 2010 at 4:01 am | Posted in ADA, discrimination, Employee, Employer, Employment Law, FLSA, harassment, Legal, retaliation, union, wage & hour, Workers' Compensation | 5 Comments
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I am an unabashed fan of the old Rankin/Bass movies.  There is something about the old stop motion fuzzy puppets that sends waves of nostalgia over my usually unsentimental soul.  Watching my favorite holiday movie of all time, “Rudolph the Red-Nosed Reindeer,” again last week provided me with a different perspective on this old holiday favorite – an employment lawyer’s perspective.  Please know that this blog is written with love, and a sense of humor.

Rudolph has an obviously different nose from the other reindeer; Rudolph’s nose is red and it glows.   Does Rudolph’s red nose make him a qualified individual with a disability?  Such an inquiry under the new ADA revolves around whether Rudolph’s red nose limits one or more of his major life activities. The potential mitigating factor of Rudolph’s awful black fake nose no longer matters.  Rudolph certainly has a record from birth of having a glowing red nose.  His reindeer training coaches and fellow Santa’s Sleigh trainees certainly regarded Rudolph as having an impairment – and treated him differently as a result by not letting him join in any reindeer games.  Even if Rudolph’s red nose did not materially impact his daily activities, perhaps his depression and post-traumatic stress from the differential treatment would qualify him under the ADA.  Does Santa provide an EAP that Rudolph could access?  Does Santa even offer health insurance benefits such that Rudolph could explore potential surgical correction of his red nose?  At the very minimum, I would think Rudolph could file an EEOC charge based upon being perceived as disabled.

Speaking of perceptions, Hermey the Elf is treated differently by his elf co-workers as a result of expressing his individuality.  There are hints of perceived sexual orientation discrimination due to the fastidious hairstyle and detectable lisp.  Sexual orientation discrimination is actionable in several counties in Florida, and quite possibly in the North Pole.  Does Hermey have an Oncale claim due to male on male discrimination and harassment?  Perhaps a claim under Title VII or the Florida Civil Rights Act is in order?  Hermey is treated differently by the Elf who I deem the Union Steward Elf and denied his breaks so perhaps a Union grievance requesting a new Steward is in order?  Does the Collective Bargaining Agreement specify breaks, and is Hermey being denied his rights under the CBA?  As a toy maker, is Hermey entitled to overtime pay due to having to work more than 40 hours in a workweek based upon his employer’s seasonal production demands?  Or does toy making qualify under the Artistic exemption to the FLSA?

Santa also appears to have some management style issues.  His employees gather to perform for him, as instructed by management and Santa, and Santa abruptly cuts them off.  The Union Steward  Elf may be filing a grievance against Santa for his refusal to engage in good faith bargaining about performances and toy production.  Santa needs to read “Good to Great” and “Blink” to have a better idea as to how to properly hire his management team, and manage and motivate his workforce.  Santa should consider signing up his leadership team for some team-building exercises.  Anti-harassment and anti-discrimination training – with Santa present – is warranted.

Gender discrimination is very obvious throughout the movie by the fact that Clarice and the other does are separated from the young bucks in the reindeer games – why can’t girl reindeer fly?  After all, Vixen is on Santa’s team.  Thank you Vixen for breaking that glass ceiling!  Direct evidence of gender discrimination is shown by the remark from Rudolph’s Father Donner that Clarice and Rudolph’s Mother cannot go looking for Rudolph in the snow storm because it’s much too dangerous “for girls”.

Need I discuss the Island of Misfit Toys?  Toys perceived as disabled are sent off to live far away from their able-bodied colleagues in a most discriminatory fashion.  Each toy sadly tells its tale of why the toy is different, and bemoans the fact that “no child wants to play with them” like they play with normal non-disabled toys.  I picture a seven-figure jury verdict here……

The Abominable Snow Monster, affectionately called “The Bumble” is either the poster-child for successful anger management or rehabilitation programs, or is the victim of national origin and religious discrimination due to his following the rituals of his ancestors and eating deer meat.  As a result of his religious practices, The Bumble is then subjected to harassment and even maiming due to discrimination.  His conforming to the standards of others is presented in a positive manner due to his participation in the tree lighting ceremony, but is he participating out of fear of further retaliation?  All of his teeth were pulled, what physical torture could result out of further practicing his sacred rites?

Donner suffered injuries while in the cave of The Bumble.  Was Donner’s search for Rudolph – conducted with the consent and approval of Santa – within the course and scope of employment such that a workers’ compensation claim could be filed against Santa’s Workshop?  Or was the trip to the known hazardous area surrounding The Bumble’s cave outside of Santa’s instructions such that a frolic and detour could be alleged?

While Santa comes around to recognizing the hard work of his employees at the end of the movie, you have to wonder if his change of heart is due only to the fact that the Christmas Eve Special Project assignment was successfully completed.  Santa needs to recommit to ensuring a discrimination and harassment free environment to comply with his Workshop’s mission statement of bringing joy and happiness to all.

I plan to sing along with Sam the Snowman, a.k.a. Burl Ives, clutching my cup of hot cocoa – and cup of cheer – as I watch Rudolph again this year.  I assure you I will enjoy every single politically incorrect moment.

Happy Holidays!

Chris Sensenig

The National Labor Relations Board files a complaint based on Facebook comments – with the NLRB entering the mix, will a ruling alter social media/social networking policies in the private or public sector?

November 10, 2010 at 8:23 pm | Posted in ADA, discrimination, Employee, Employer, harassment, Legal, New employment laws/amendments, Social Media/Social Networking, union | Leave a comment
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The National Labor Relations Board – “NLRB” – has taken up the cause of a Connecticut employee who was fired after making a post on her Facebook page.  The employee in question used some vulgar language when making comments about her supervisor, and then maligned the supervisor’s psychiatric state by using one of her Company’s codes for a psychiatric patient in her post: “Love how the company allows a 17 to become a supervisor.”  The termination caught the NLRB’s attention as the employee suggested she posted the criticism because the supervisor in question would not let a union representative prepare a response to a customer’s complaint regarding work she had done for the customer.

The company at issue, American Medical Response, took the proactive step of having a policy in place governing conduct Facebook and other social media/social networking sites.  I regularly advise my clients to have such policies in place as having rules in place reduces confusion later – and protects one’s brand and reputation in the cyberspace community.

The NLRB argues that the Company’s policy is overly broad.  Even more interesting is the NLRB’s theory that the Company’s policy violates the National Labor Relations Act’s prohibition against punishing employees for engaging in or soliciting discussions about working conditions or unionization.  A lawyer for the NLRB likened the Facebook posting to a “water cooler discussion among co-workers.”  Is Facebook analogous to the public square such that the protections of the NLRA apply?  Is it ever acceptable to hurl insults at one’s supervisor and expect no repercussions?  Does the inquiry change if the employee in question had her privacy settings set so that the general public could not see her posts?  Does commenting on a supervisor’s mental health status implicate the employer’s anti-harassment/anti-discrimination policies or perhaps the ADA?  Would the decision be different in a state such as Florida where we have a constitutional right to privacy guaranteed by Florida’s State Constitution?  Does the First Amendment come into play considering the comment was likely made on the employee’s own time?

To aid in framing the discussion, the NLRB provides guidance as to when Facebook comments lose protected concerted activity status under the NLRA.  Where is this guidance found?  On the NLRB’s Facebook page!  The NLRB states that a four point test applies: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.

Employers would be wise to review their social media and social networking policies for overreaching in light of the NLRB’s stance. The bigger picture question is whether a successful action by the NLRB results in employee rants, however vulgar,  being deemed protected activity under the NLRA?  While it is unlikely that protection will be found for an employee’s publicly ridiculing of a supervisor and suggesting that the supervisor was mentally unstable, stranger things have happened when dealing with the NLRB.

A hearing on the NLRB complaint is currently scheduled for January 25, 2011.  Updates will be provided on this blog.  You can also check out the NLRB’s Facebook page for updates on the issue as well:  http://www.facebook.com/NLRBpage.

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.

An employee’s medications are causing him to spend hours in the bathroom – is this an ADA problem?

July 31, 2010 at 5:04 pm | Posted in ADA, discrimination, Employee, Employer, Employment Law, Legal | 1 Comment
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An interesting case out of the Third Circuit discusses “substantially limits a major life activity” when a medication or treatment for an employee’s underlying health condition is the vehicle by which the employee is seeking coverage under the Americans with Disabilities Act, the “ADA.”  Bear in mind that the ADA was amended recently and the case discussed in this blog was decided under the ADA as it existed in 2005/2006.

Under the ADA, an individual is disabled if he has “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. §12102(2) (2009).  Prior to the significant recent amendments made to the ADA, mitigating measures used by the disabled individual may have removed that individual from coverage under the ADA.

“Major life activities” under the old ADA included “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” A major life activity is “substantially limited” if an individual is unable to perform it or is “significantly restricted as to the condition, manner or duration” under which it is performed, as compared to an average person in the general population. In determining whether a substantial limitation exists, the regulations require the consideration of three factors:

1. the “nature and severity of the impairment”;

2. the “duration or expected duration of the impairment”;

3. the actual or expected “permanent or long term impact” resulting from the impairment.

In the case of Sulima v. Tobyhanna Army Depot et al, Case No. 08-4684, Third Circuit Court of Appeals, decided April 12, 2010, Mr. Sulima suggested that the medication he took for his obesity, sleep apnea and gastrointestinal difficulties qualified him as covered under the ADA.  Mr. Sulima had the burden of showing the court that the medication caused him to be substantially limited in a major life activity.

Mr. Sulima admitted to the court that his gastrointestinal problems were caused by the medications he was taking to lose weight.  At the trial level, the court found that Mr. Sulima was claiming to be substantially impaired solely due to side effects from his prescribed medications. Mr. Sulima’s weight loss medications caused him such gastrointestinal distress that he spent hours in the bathroom at his workplace.  The trial court determined that Mr. Sulima’s claims for coverage under the ADA were based solely on a disorder or condition resulting from the medication he took, not from the underlying health problem that the medication is meant to treat.  The court of appeals governing Florida cases, the Eleventh Circuit of Appeals, has found that even if an individual was not disabled within the meaning of the ADA, that individual could still possibly claim an impairment resulting from the side effects of medication, such as chemotherapy treatments in response to cancer when the cancer itself was not disabling. See Gordon v. E.L. Hamm & Associates, 100 F.3d 907, 912 (11th Cir. 1996).  Again, keep in mind that these rulings were made under the old ADA; still, the analysis regarding “qualified individual with a disability” and what it means to be “substantially limited” may still be instructive and pertinent.

The Third Circuit found that for a treatment’s side effects to constitute an impairment under the ADA, it was not enough for Mr. Sulima to show just that the potentially disabling medication or course of treatment was prescribed or recommended by a licensed medical professional. Instead, Mr. Sulima had the burden of showing that the medication or course of treatment must be required in the “prudent judgment of the medical profession,” and there must not be an available alternative that is equally efficacious that lacks similarly disabling side effects.  The court found that the concept of “disability” connotes an involuntary condition, and if one can alter or remove the “impairment” through an equally efficacious course of treatment, it should not be considered “disabling.”

The Third Circuit agreed with the trial court that Mr. Sulima did not demonstrate that his prescribed medication was required:  after being confronted by his employer regarding his frequent long bathroom breaks, Mr. Sulima contacted his doctor who actually recommended that Mr. Sulima stop taking the medication that was causing the side effects.  Because there were other medications Mr. Sulima could have taken that did not cause such debilitating side effects, Mr. Sulima failed to demonstrate that the medications that were causing his problems were medically necessary, thus their side effects cannot be considered as impairments within the meaning of the ADA.

While this case involved the ADA prior to the recent amendments, the court’s analysis here may still prove helpful when determining who is a “qualified individual with a disability.”  It will be interesting to watch the case law evolve as the EEOC issues guidance on the amended ADA, and as new ADA cases make their way through the court system.

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.

The world of employment law is continually evolving and changing – but aren’t we all?

January 18, 2010 at 8:06 pm | Posted in ADA, discrimination, Employee, Employer, Employment Law, FLSA, harassment, I9, Immigration, Legal, New employment laws/amendments, retaliation, Unemployment, union, wage & hour, Workers' Compensation | Leave a comment
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COBRA Subsidy Update:  On Dec. 19, 2009, President Barack Obama signed into law an extension of the original COBRA subsidy enacted in February 2009. Under the new extension, individuals are eligible for the subsidy if the involuntary termination occurred during the period that began Sept. 1, 2008 and ends on Feb. 28, 2010 (the loss of coverage does not have to occur by that date). Eligible individuals pay only 35 percent of their COBRA premiums (the employer must pay the rest) but the remaining 65 percent is reimbursed to the coverage provider – usually the employer – through a tax credit.

The U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) recently posted updated materials at http://www.dol.gov/ebsa/cobra.html to help employers, employees and benefits plan administrators to understand the eligibility requirements of the recent extension.

The above is not legal advice nor is this posting the creation of an attorney client relationship between the Sensenig Law Firm and the reader.

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