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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EEOC issues informal discussion letter regarding “reasonable accommodations” under the ADA/ADAA

April 29, 2014 at 2:06 pm | Posted in Uncategorized | Leave a comment
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Directly from the EEOC’s website: http://www.eeoc.gov/eeoc/foia/letters/2014/ada_reasonable_accommodation_02_25.html

The U.S. Equal Employment Opportunity Commission
EEEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: Reasonable Accommodation

 February 25, 2014

Dear _:

This is in response to your letter to Chair Jacqueline A. Berrien, dated December 6, 2013, concerning a Sample Reasonable Accommodation Policy and accompanying sample forms. The sample policy, written by a law firm, notes that it is intended to aid employers in meeting their obligations under the Americans with Disabilities Act (ADA), as amended, and states that the accompanying sample forms are for “informational, educational, and/or training purposes only.”

You state that these documents were obtained from the website of a state agency. As your correspondence noted, a government official stated that the sample policy is no longer available on the agency’s website and was never used as official accommodation policy of any agency. Rather, it was posted only for training purposes.

We will not offer a comprehensive review of the sample policy and its forms. Instead, we address several aspects of the sample policy and accompanying forms that raise concerns, even if they are intended for “informational, educational, and/or training purposes.”1

Sample Disability Accommodation Policy

Requests for reasonable accommodations must be handled on an individualized basis. Employers generally need to engage in an interactive process to determine whether a reasonable accommodation is warranted, and this process is influenced by, among other things, the nature of an employee’s disability, the employee’s job, and the work environment. Consequently, it is difficult to develop a policy and related forms that can address all variables. In addition, the law in this area continues to develop, making it risky to conclude, as the policy does, that certain things never (or almost never) have to be provided as reasonable accommodations.

Leave

The sample policy states that an employer is not required to provide certain accommodations. The policy is correct that certain actions, such as eliminating essential functions, are not required. However, the sample policy states that an employer is not required to permit “unscheduled (or erratic, unpredictable, intermittent) or excessive absenteeism or tardiness as a reasonable accommodation.”

This formulation could lead to the inappropriate denial of a reasonable accommodation. First, the sample policy does not distinguish between unscheduled and excessive absenteeism. It is highly unlikely that an employer could deny unscheduled leave in all cases.

For example, an employee with epilepsy may have one or two seizures a year requiring unscheduled leave of one day each time. The fact that the leave is unscheduled, or could be characterized as erratic, unpredictable and intermittent, does not mean that an employer can deny this type of leave. An employer would have to grant leave under these circumstances as a reasonable accommodation unless it could show undue hardship.2

Second, the sample policy does not explain when leave needed as a reasonable accommodation will be considered “excessive,” thus increasing the possibility that requests will be handled inconsistently and leave will be denied inappropriately. Whether leave granted as a reasonable accommodation is “excessive” must be determined by considering whether it imposes an undue hardship.3

Working from Home

The sample policy states that working from home is “generally” not a reasonable accommodation “except in extraordinary circumstances.” While we are aware that some courts have found a legal obligation to provide telework as a reasonable accommodation to be limited,4 the law is far from settled. The EEOC recognizes telework as a form of reasonable accommodation and has provided guidance for employers and employees in determining if it may be an effective form of reasonable accommodation.5 Thus, the suggestion that working from home is not required except in extraordinary circumstances may lead an employer to violate the ADA. Of course, telework is not appropriate for all jobs. Working together, the employer and employee should determine whether it would enable performance of the job’s essential functions. Additionally, an employer need not provide telework as a reasonable accommodation if it is not necessitated by the disability or if another reasonable accommodation can be provided that will effectively meet an employee’s limitations.

Use of Mitigating Measures

The sample policy states, “if an employee can control an impairment with medication or assistive devices and thereby perform essential job duties, no reasonable accommodation would normally be needed or reasonable.” However, people with many types of disabilities and who use many different kinds of mitigating measures still may require reasonable accommodation because the mitigating measure either does not eliminate all disability-related limitations or because it imposes limitations. For example, someone with a prosthetic arm may require a device to assist with lifting, and someone with diabetes may need more frequent breaks to monitor blood glucose and insulin levels.

Our second concern is that this sentence can be read to mean that if an employee currently does not use medication or another mitigating measure, but an employer believes the employee could benefit from one, the employer may not have to provide a reasonable accommodation. The Sample Request for Accommodation Form, which asks the requestor to “list the medication and/or devices that you use or that have been recommended for you to use” (emphasis added), reinforces our reading of the language in the policy. A similar set of questions in the Health Care Provider Form asks a doctor if there are medications or assistive devices that could mitigate the effects of the impairment. If there are and the doctor has not prescribed them, the doctor is asked to explain why.

The effectiveness of medications and other mitigating measures can vary widely. The use of a particular medication or other mitigating measure may eliminate one employee’s need for a reasonable accommodation, but not another’s. Moreover, the choice of whether to use a mitigating measure is the individual’s, and an employer cannot base a denial of a reasonable accommodation on its belief that the individual ought to be using a particular mitigating measure instead.6

Request for Accommodation Questionnaire

Requirement that Employee Requesting Accommodation Be Substantially Limited in Performing Essential Functions

This form begins by stating that the employer is committed to accommodating the needs of any qualified individual who has a physical or mental impairment “which substantially limits his or her ability to perform the essential duties of the job.” However, an individual does not have to be substantially limited in the major life activity of working (there is no major life activity of performing essential functions) to have a disability under the ADA, and an employee who is substantially limited in a major life activity other than working (which will usually be the case) need not demonstrate that any work-related limitation necessitating a reasonable accommodation is “substantial.”7

Questions that Ask for More Information than Permitted by the ADA

The form asks questions that, in many situations, will violate the ADA if asked routinely of all employees requesting reasonable accommodation. Although, as the EEOC has noted, employers are permitted as part of the interactive process to ask disability-related questions if they are necessary to establish that the person has a disability and/or needs a reasonable accommodation, this does not entitle the employer to obtain any medical information it wants.8

First, if a disability is obvious (e.g., blindness, deafness, missing limb), an employer may not ask questions to establish if the person’s impairment is a disability.9 Even when the disability or need for accommodation is not obvious, the ADA prohibits employers from asking disability-related questions of employees unless they are job-related and consistent with business necessity.10 Employers may seek disability-related information as part of the interactive process as long as such information is necessary to establish that the person has a disability and/or needs a reasonable accommodation.11 The appropriate questions will differ in each situation depending on a number of considerations, including the individual’s impairment, the employer’s previous knowledge about the employee’s disability, and the type of reasonable accommodation requested. Therefore, requiring everyone who requests an accommodation to answer all of the questions on this form will violate the ADA in most, if not all, instances.

For example, we strongly disagree with the practice of routinely asking a person requesting reasonable accommodation to describe “your treatment plan in detail.” There may be situations in which an employer might be entitled to certain information about an employee’s treatment to determine whether a medical condition is a disability (such as information about use of a mitigating measure), or whether a person’s treatment is connected to the type of reasonable accommodation requested (most notably, where the employee has requested leave to obtain treatment). However, an employer cannot justify routinely asking individuals requesting a reasonable accommodation to divulge in detail their treatment plans. Similarly, although an employer may ask about the use of mitigating measures to determine an employee’s need for a reasonable accommodation, we disagree that employers may routinely ask individuals requesting reasonable accommodation what medication and/or devices “have been recommended for you to use.” Indeed, such a question will rarely, if ever, be permissible.

Questions that Require Employees to Address the Need for Accommodations They Have Not Requested

In addition to asking for medical information that may not be needed to evaluate a request for reasonable accommodation, the form focuses on certain types of reasonable accommodations, apparently requiring an individual to address the need for them, even if they are not the ones being requested. For example, there are questions asking whether (1) the requestor’s impairment requires leave or the need for adjustments to work schedules or (2) the impairment affects the ability to work a normal work schedule. There is no reason to ask these questions of someone who, for example, requests a modification of equipment or a sign language interpreter.

Focusing on Certain Accommodations to the Exclusion of Others

The form implies that the listed questions are the only ones that should be asked in response to a request for reasonable accommodation. However, the form does not ask questions that would be helpful in assessing requests for accommodations such as modification or purchase of equipment, a change in a workplace policy (other than leave and attendance policies), the ability to bring a service animal to work, or removal or substitution of a marginal function. Additionally, the form does not account for situations in which employees require accommodations for reasons other than to perform essential functions. The obligation to provide reasonable accommodation extends to employees seeking equal access to a benefit or privilege of employment, such as employer-provided training, as well as to applicants who require accommodation for some aspect of the hiring process.12 We are not suggesting that this form be lengthened to add more questions (we think it is already too long as an initial means of obtaining information related to a request for reasonable accommodation); rather we want to point out that the wide-ranging nature of reasonable accommodations undermines any attempt to draft a comprehensive form that asks all the right questions.

Questions that Are Confusing or Irrelevant

One question asks whether the impairment limits the person’s “ability to perform or engage in any activities outside of work[.]” If the question is an attempt to determine the major life activity that is substantially limited as a result of an impairment, it is poorly worded to elicit such information. If the question has nothing to do with determining whether the requestor has a disability, then the question would appear to be irrelevant.

A follow-up question implies that an inconsistency exists if a requester states that an impairment affects work-related activities but not non-work activities: “Explain why your non-work activities are not affected when the impairment will affect your work activities.” (emphasis in the original). However, it is quite possible that a disability will present work-related difficulties that do not affect an individual off the job.

Failure to Explain the Reason for Asking the Questions on the Form

Finally, we note that the sample form does not explain the need for asking any of these questions. Once an employer has carefully considered the necessity of asking certain questions as part of an interactive process, it should explain to the individual, either on the form or in person, the reason for asking each question, i.e., an employer should explain how a particular question provides information to establish the existence of a disability and/or a need for reasonable accommodation. Though not specifically required by the ADA, this can encourage the individual’s cooperation in providing information.

Health Care Provider Questionnaire

This sample questionnaire is 7 pages long and asks many of the same questions asked in the sample Request for Accommodation Form. The ADA prohibition on asking disability-related questions of an employee, except if they meet the “business necessity” test, extends to questions asked of an employee’s doctor.13 Consequently, we believe that a number of the questions on this form that also appear on the sample Request for Accommodation form discussed above would violate the ADA for reasons discussed in the previous section.

Also of concern is the wording of certain questions. They give a doctor limited choices in answering, apparently because the form seems to focus on a limited number of reasonable accommodations. For example, one question asks the doctor whether the employee is able to perform his job, including meeting normal attendance and overtime requirements. If the doctor answers no, then the doctor is instructed to check only one of the following three answers:

The Patient is not able to perform any job duties and needs a continuous leave of absence
The Patient is able to perform all job duties but needs a special work schedule
The Patient is able to perform some, but not all, job duties.
The questions do not take into account the possibility that the employee can perform all work functions but needs a reasonable accommodation other than a modified work schedule. Perhaps this sample form is intended to be used only for employees requesting leave or changes to their work schedules, but that is by no means clear.

The ambiguity of other questions raises concerns that a doctor’s answers could, incorrectly, lead an employer to fail to provide a reasonable accommodation or exclude a qualified individual with a disability from working. For example, one question asks the doctor to answer “yes” or “no” to the following: Will the Patient fully recover from the Health Condition at some date in the future so that the Patient can perform all job duties without restrictions?” It is not clear how the doctor should respond if, for example, the employee will never fully recover but may still be able to perform all job duties without restrictions.

More troubling is the fact that the sample form suggests to an employer that an employee who has been on leave because of a disability or who sustained an injury must ultimately be able to work without any restrictions. Employers cannot require that employees be fully recovered or able to work without restrictions if an employee could return to work with a reasonable accommodation (absent undue hardship).14

Conclusion

The wide range of disabilities, employers, jobs, workplaces, and reasonable accommodations makes it exceedingly difficult to develop a form with questions that almost everyone requesting accommodation would need to answer. Additionally, the longer the form, the higher the likelihood that many requestors (or their health care professionals) will be asked questions that violate the ADA and do not serve the employer’s interest in obtaining relevant information to make an informed decision about the request for reasonable accommodation.

If an employer uses forms to gather information about the need for a requested reasonable accommodation, it should ask, in plain English, the few questions that will help to determine whether the requestor has a disability and needs a reasonable accommodation. (If the disability is obvious, then an individual should be asked to answer only those questions on the form that address why a reasonable accommodation is needed.) Regarding the existence of a disability, for example, a form could ask information about the nature of the requestor’s impairment and its expected duration; the kind of activities, including major bodily functions, that the impairment affects; and the way in which the activities are affected.15 A form could also ask about the use of mitigating measures and the extent to which they eliminate or control the impact of the medical condition. It is helpful to give examples to explain terms that many people may not recognize as having specific legal meanings. So, a form that asks about an impairment’s effect on “major bodily functions” or other “major life activities,” could offer examples such as normal cell growth; endocrine, neurological, or brain function; standing; lifting; and concentrating. Similarly, a form could provide examples of mitigating measures such as medication, physical therapy, assistive devices, and behavioral modifications. Regarding the need for reasonable accommodation, a form could ask how an accommodation would assist the individual to apply for a job, perform the job’s essential functions, or enjoy equal access to the benefits and privileges of employment.

Employers should consider the purpose behind each question on a form, i.e., whether the answer will provide information concerning the existence of a disability, the need for a reasonable accommodation, or both. Any question that does not address at least one of these issues should be carefully reviewed to determine whether the information requested is necessary to enable the employer to determine the need for a reasonable accommodation, especially if it is a disability-related question. Employers also may wish to have an appropriate management official handling the request (e.g., an HR director) review the form before giving it to a particular applicant or employee to determine if certain questions should be eliminated as irrelevant to the particular request and/or whether other questions should be asked.

I hope this information is helpful. This letter does not represent an official opinion of the EEOC.

Sincerely,

/s/

Peggy R. Mastroianni
Legal Counsel

Footnote

1 We note that the introduction to the sample forms does encourage an employer to seek legal advice from its counsel when faced with “particular fact situations.”

2 Example 34 in EEOC’s Q&A on “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, http://www.eeoc.gov/facts/performance-conduct.html, addresses a similar situation. This section also provides examples where an individualized assessment of the facts supports an undue hardship determination. The discussion also notes the impact of the Family and Medical Leave Act when an employee requests intermittent leave, something the sample policy does not acknowledge in suggesting that intermittent leave may generally be denied.

3 The sample policy states that “not all possible accommodations are reasonable” and this includes “excessive absenteeism.” The EEOC regards the length of leave as an issue of undue hardship. See Question 44 in EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA, http://www.eeoc.gov/policy/docs/accommodation.html [hereinafter “EEOC Accommodation Guidance]. Therefore, we believe that it would be better to explain that denial of excessive leave will be based on the undue hardship factors, which include the impact on the employer’s operations resulting from leave already used and any additional leave requested.

4 See, e.g., Mobley v. Allstate Ins. Co., 531 F.3d 539 (7th Cir. 2008).

5 See Question 34 in EEOC Accommodation Guidance, supra note 3; see also EEOC Fact Sheet, “Work at Home/Telework as a Reasonable Accommodation,” http://www.eeoc.gov/facts/telework.html.

6 See Question 38 in EEOC Accommodation Guidance, supra note 3. As the answer to Question 38 points out, the decision to forgo use of medication, treatment, or an assistive device (or any other mitigating measure) may render an individual not qualified. See also 29 C.F.R. pt. 1630 app. § 1630.2(j)(1)(vi).

7 See 29 C.F.R. pt. 1630 app. § 1630.2(j) (discussion of “Substantially Limited in Working”).

8 See Questions 6 and 8 in EEOC Accommodation Guidance, supra note 3.

9 See Question 6 in EEOC Accommodation Guidance, supra note 3.

10 See “General Principles” section in EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, http://www.eeoc.gov/policy/docs/guidance-inquiries.html [hereinafter EEOC Inquiries Guidance].

11 See Question 7 in EEOC Inquiries Guidance, supra note 10.

12 See Questions 12-13 and section on “Reasonable Accommodation Related to the Benefits and Privileges of Employment” in EEOC Accommodation Guidance, supra note 3.

13 See Question 1 in EEOC Inquiries Guidance, supra note 10.

14 Cf. Question 13 in the EEOC Enforcement Guidance: Workers’ Compensation and the ADA, http://www.eeoc.gov/policy/docs/workcomp.html.

15 The ADA Amendments Act of 2008 (ADAAA) made it much easier for individuals claiming rights under the ADA to show that they have covered disabilities. For example, certain impairments will easily be found to be disabilities, including diabetes, post-traumatic stress disorder, and epilepsy. See 29 C.F.R. § 1630.2(j)(3)(iii) and 29 C.F.R. pt. 1630 app. § 1630.2(j)(3). Information substantiating that an individual has one of these types of impairments should be sufficient to establish that the individual has a covered disability. As a result of the ADAAA, most of the focus of the reasonable accommodation process, and the forms used to gather information as part of that process, should be on whether an accommodation is needed, and if so, what type, rather than on whether an individual has a covered disability.

Comments from Christine Sensenig of the Sensenig Law Firm:

One size fits all does not apply to the ADA, or the ADAA.  Employers must consider each request for a reasonable accommodation on a case-by-case basis.  Employers must also consider the actual impact on the organization as a result of the employee’s request for accommodation.  While a very small employer may not be able to accommodate an employee’s request for major changes in his or her work schedule, larger employers will not have the same restrictions.  Using forms provides consistency for an employer, but that form must be tailored each and every time to apply to the unique situation at hand.  The key phrase to use is “how can we help you?” when addressing disability related issues.

The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.

 

 

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