George Asimou was featured in “EEOC on the Americans with Disabilities Act: One rule– No Clear Boundaries,” published by RBMA
EEOC on the Americans with Disabilities Act: One rule– No Clear Boundaries
By: George Asimou
The United States Equal Employment Opportunity Commission (EEOC) held an open meeting on June 8, 2011 on the appropriate use of disability leave as a reasonable accommodation at its headquarters in Washington, D.C. The open meeting is just the latest step in the EEOC’s on-going effort to move the marketplace towards its enforcement position that employers may not implement one-size-fits-all leave periods for disabled employees (i.e., disabled employees have x number of days to return to work or face termination) – a lesson that Sears Roebuck learned in 2009 at the decidedly burdensome price of $6.2 Million.
Employers are well advised to review the leave sections of their handbooks to ensure that disability leave policies are generally open-ended, providing that leave requests be evaluated on a case-by-case basis, with a disclaimer that such leaves cannot pose an undue hardship to the business. Fixed period disability leave policies should be used with caution and in consultation with legal counsel. Employment handbook provisions are intended to be your support in litigation, not the plaintiff’s direct evidence of discrimination.
- The EEOC’s enforcement position re-affirms some longstanding first principles of Americans with Disabilities Act (ADA) compliance. The ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. What’s reasonable and what’s an undue hardship is a case-by-case analysis – and certainly not subjectively at the employer’s discretion. Think less of a sprained ankle or headache for your business and more a broken ankle or a stay-in-bed migraine.
- The EEOC’s enforcement position further complicates decision-making as to leave requests involving the so-called Bermuda Triangle (i.e., the intersection of the Family and Medical Leave Act (FMLA), the ADA, and workers’ compensation laws). The FMLA’s (limited) sex appeal lies in providing some certainty as to the duration of medical leave. In most circumstances, its 12 weeks, tops. The EEOC’s enforcement position requires employers to determine if an employee’s “Serious Health Condition” under the FMLA presents a “Disability” under the ADA, then to act accordingly in making a determination as to whether leave might extend beyond 12 weeks. “Welcome to Bermuda!” the EEOC seemingly tells employees with disabilities “Stay a while – the weather’s great!”
The EEOC’s enforcement statistics forecast decidedly stormier weather for employers. The most recent data for Fiscal Year 2010 show a marked increase in disability claims, topping 25,000 for the first time since records were kept, an increase of 15% from Fiscal Year 2009. Regardless of whether you’re an FMLA employer or not (while the FMLA generally applies to employers with 50 of more employees, the ADA generally applies to employers with 15 or more employees), take care to act with judicious flexibility in determining how reasonable to be in extending leave as an accommodation under the ADA.
Reprinted with permission from RBMA RadCast July 2011 issue.