The U.S. Equal Employment Opportunity Commission (EEOC) issued a new resource document today titled: Employer-Provided Leave and the Americans with Disabilities Act. A few weeks ago, I wrote about the Department of Labor’s new guide: The Employer’s Guide to The Family and Medical Leave Act. The EEOC’s document, however, is general guidance for both employers and employees. Why now? Maybe the Young v. United Parcel Service, Inc. case whereby a pregnant employee restricted from lifting was denied a lifting accommodation provided to others under an ADA request? I have no idea, but, the EEOC notes in its news release, that disability charges have increased by 6% over last year. I can’t disagree. I have also had a disproportionate amount of claims and charges over the past year that have included disability issues like I’ve never seen before.
One troubling trend the EEOC has identified in ADA charges is the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation.
So, it seems that as charges have been investigated, employers’ policies are not up to par. This is a great reminder for employers to check your employee handbook – ensure your time-off policies are compliant with the ADA. Even if you have to change it now, at least you are clarifying your (hopefully) already compliant practice. As the EEOC has this on their radar, it would be prudent to ensure your policies and employee handbook are in the clear. Notably, here in Minnesota, we are seeing an increase in Commissioner-based charges and audits based on job application wording and questions. There is clearly a movement toward proactive compliance – so don’t sit by and wait for an audit or charge!
In any event, the “resource document” actually is a lot less flashy than the FMLA guidance – as far as I can tell it is just a webpage on the EEOC’s website, though it does provide several helpful links to other guidance as well. The resource explains how EEOC’s existing policies and guidance applies to various situations; consolidates existing ADA guidance; addresses frequent issues including the interactive process; and provides illustrative examples. All good stuff.
Below are some of the EEOC’s more eye-opening guidance statements:
- An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it (and no undue hardship would be imposed), 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 leave (including under FMLA or workers’ compensation).
- When an employee requests leave, or additional leave, for a medical condition, the employer must treat the request as one for a reasonable accommodation.
- If the leave can’t be granted under an employer’s leave program, the FMLA (or similar state or local law), or workers’ compensation, the employer should promptly engage in the interactive process with the employee.
- The interactive process may continue even after an initial request for leave has been granted (such as if the employee’s request did not have an end date or the employee requests additional time off).
- An employer that has granted leave with a fixed return date may not ask the employee to provide periodic updates, but may reach out to the employee to check on the employee’s progress. (Note: this is contrary to several court opinions, so the issuance of this guidance may have an impact there).
- Maximum leave policies may have to be modified as a reasonable accommodation.
- A maximum leave policy form letter (whether mailed from a third-party provider or the employer) should be modified to let employees know that if they need additional unpaid leave as a reasonable accommodation for a disability, the employee should ask for it as soon as possible. Similarly, employers are still responsible for complying with the ADA, even if a third-party administrator handles their employee leave process and paperwork (usually for FMLA). If an employee requests additional leave, the employer should commence interactive process…again.
- An employer will violate the ADA if it requires an employee with a disability to have no medical restrictions – that is, to be “100%” healed or recovered.
- An employer will violate the ADA if it claims an employee with medical restrictions poses a safety risk, but cannot show that the individual is a “direct threat” (whether the disability poses a “significant risk of substantial harm” to self or others).
- Reassignment to a new position may be a reasonable accommodation.
- Unlike approximate dates or date ranges, an indefinite leave will constitute an undue hardship, and so it is not a reasonable accommodation.
Although no laws or regulations have changed, the EEOC’s latest guidance does provide some insight into current initiatives, the EEOC’s interpretations, and “what not to do” examples. Notably, I think the biggest takeaway is that the EEOC is looking at employers’ unpaid leave policies and saying, it won’t let employers hide anymore behind maximum leave policies – just because an employee has taken 12 weeks of leave, does not mean that it would not be a reasonable accommodation to provide the employee a few more weeks’ leave, if required. Therefore, when in doubt, consider the interactive process (again, and again, and again…).