Jeff Nowak, EEOC's Chai Feldblum talk leave as a reasonable accommodation
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Monday, June 27, 2016

Jeff Nowak, EEOC's Chai Feldblum talk leave as a reasonable accommodation

By Pamela Wolf, J.D. Leave as a reasonable accommodation under the ADA is one of the most difficult issues facing employers, HR professionals, and third party administrators. The legal contours and practical matters surrounding the issue were fleshed out in an EEOC resource document that Franczek Radelet Partner Jeff Nowak dubbed a "wake-up call" to both the employer and employee communities about what needs to be considered in contemplating such leave. The EEOC’s resource document was at the heart of a June 23 webinar hosted by Nowak that featured EEOC Commissioner Chai Feldblum’s take on the many questions that can arise from the myriad pieces that make up the leave-as-a-reasonable-accommodation puzzle. The EEOC resource document. Released last month on May 9, the resource document, Employer-Provided Leave and the Americans with Disabilities Act, is aimed at helping educate employers and employees about workplace leave under the ADA to prevent discriminatory denials of leave. While Nowak called it a "wake-up call," he also clarified that it portends no "earthshattering change" but appears to codify what the EEOC has said before. Among other things, he said it provides critical guidance on the sort of information employers can get from employees’ medical providers and the questions employers can ask employees to answer. Elaborating further, Feldblum said the document is based on what the EEOC has said before and what the agency has litigated, not new stuff—the difference is that the information is now compiled in one "user friendly" document. The technical resource document, developed by agency staff, updates EEOC guidance issued in 2002, but as a technical resource document, it was not voted on by the Commission and does not carry the weight of official agency guidance. It merely provides additional explication of agency guidance—a sort of book review of the guidance—that provides examples and is based on what the EEOC has currently said about leave as a reasonable accommodation under the ADA. Unpaid versus paid leave. According to the EEOC, an employer must consider providing unpaid leave when the employee requires it due to a disability and it does not create an undue hardship for the employer. On the other hand, employers may choose to provide paid leave, but they must treat all employees the same, and while conditions may apply, they must be applied evenly. After FMLA leave is exhausted. Discussing situations in which an employee has exhausted his or her FMLA leave and requests additional leave, Nowak underscored what he call "missed opportunities," such as performance issues noted even before the employee’s leave began and a manager’s comment that the employee was "just not himself." These are opportunities to begin the interactive process, which should be kept going while the employee is on leave, especially if the return-to-work date is unclear. Feldblum suggested that where there is a performance issue, the employer should not ask whether the employee is having difficulty because of a previous impairment the employer is aware of but rather, should simply ask the employee what’s going on, noting that his or her performance is not up to standard. It’s up to the employee to ask for a reasonable accommodation, she said. How often can an employer contact an employee who has been granted leave as a reasonable accommodation? While the EEOC’s resource document explains that an employer cannot ask an employee with a fixed return date to provide periodic updates, Feldblum said that employers can check in and continue the interactive process, especially when FMLA leave is nearing an end. Employers cannot "hound" employees on leave because it starts to feel like retaliation, she explained. Correspondence with employees on leave. Nowak laid out his suggestions for correspondence with employees who are on medical leave, beginning with a phone call at FMLA week 10 and then followed up by correspondence advising the employee:
  • FMLA leave will be exhausted as of [date];
  • Based on current information, we anticipate that you will return to work on [date];
  • We want to help you in any way we reasonably can;
  • If you are not able to return to work by [date], please contact me. If you believe you could return to work, but may need assistance, or if there is any other information about your return to work that you wish to call to our attention, please contact me as soon as possible;
  • Before returning to work, you will be required to provide a return-to-work certification from your health care provider confirming that you are able to perform the essential duties of your position with or without a reasonable accommodation.
Nowak said that it’s all about communicating that the employer cares about the employee. Feldblum added that it’s also in the employer’s best interest to have the employee return to work. Employers can get into trouble when they don’t want the employee to return to work. Feldblum also stressed that it’s important for the employer to know the essential functions of the employee’s job—armed with that information, the employer can have a much more productive conversation with the employee and determine whether the employee is able to perform those functions. When additional leave is requested. Both Feldblum and Nowak pointed out that when an employee requests additional leave after the expiration of FMLA leave, it should be taken as a request for a reasonable accommodation. The employer should find out from the employee the reason for the leave, whether it will be for a block of time or intermittent, and when the leave period will end. Where the employee does not provide enough information, Nowak said that employer can seek permission from the employee to contact the health care provider and ask for elaboration on the information given by the employee. Alternatively, the employer can ask the health care provider to answer questions to help understand the need for leave. Feldblum stressed that health care providers must connect the impairment to the need for leave. The provider should also give some estimate of when the employee will be able to return to work. When the doctor does not know when the employee will be able to return to work, leave is not a reasonable accommodation because it will not permit the employee to return to work. However, this is only true in very few cases, where the doctor says he or she doesn’t have a clue or "I don’t know." What questions can the employer ask? Nowak said that employers may ask for information about the following: (1) basic facts regarding the impairment (no diagnosis!); (2) the activities that the impairment limits (and to what extent); (3) how the impairment affects employee’s ability to perform essential job functions, and which job functions; (4) whether the doctor can identify any accommodations that would help the employee perform job functions; and (5) if leave is necessary, the expected date upon which the employee will be able to perform the essential job functions. When an employee seeks additional leave, employers can also ask health care providers what amount of additional leave is needed, why additional leave is necessary, and why the initial estimate proved inaccurate. Undue hardship. According to the EEOC resource document, the employer may also request relevant information to determine undue hardship. Is there a limit to how much leave an employer must grant? Yes, according to Feldblum—undue hardship to the employer is the limit, and it’s a very individual determination. According to the EEOC resource document, in accessing undue hardship, employers may consider:
  • The amount and/or length of leave required;
  • The frequency of the leave;
  • Whether there is any flexibility with respect to the days on which leave is taken;
  • Whether the need for intermittent leave on specific dates is predictable or unpredictable;
  • The impact of the employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner; 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.
Nowak noted that the undue hardship analysis takes into account both the "impact" and "ability to serve," including significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime, who may be slower and more susceptible to error. Lower quality and less accountability for quality, lost sales, less responsive client service and increased client dissatisfaction, and deferred projects may also be taken into account. An increased burden on management staff required to find replacement workers, readjust workflow, or readjust priorities in light of absent employees, are also factors to consider, as well as increased stress on overburdened coworkers and lower morale. Nowak suggested that instead of focusing so much on how many extensions of leave an employer is required to provide under the ADA--an answer likely never to be provided by EEOC or a court, employers should focus on a robust interactive process and how the employee’s leave is impacting its business operations. Moreover, Nowak stressed that the undue hardship assessment can begin while the employee is in the FMLA leave period. At the first leave extension request, the employer can then discuss with the employee how the employee’ leave is impacting the employer. The employer will be in a much better position at the second leave request to tell the employee that he or she needs to get back to work and why. Feldblum said that by the third extension request, the employer may be in a good position to say the leave is an undue hardship and give the employer only two more weeks, for example. Other takeaways. Among the many other points that Nowak and Chai discussed were these takeaways:
  • Employers should not send employees letters stating a deadline by which the employee must return to work for full duty, 100 percent healed—there must be an individualized assessment as to whether the employee can return to work with a reasonable accommodation.
  • Maximum leave policies should include a statement that if the employee is unable to return to work after he or she reaches maximum leave, the employer may grant additional leave as a reasonable accommodation, unless it would cause the employer undue hardship.
  • The EEOC has never agreed with courts’ decisions finding that regular attendance is an essential job function—the real question is whether modifying attendance is an undue hardship.
  • If all else fails, consider reassignment to a vacant equivalent position, or a lower one if none are equivalent. While the EEOC says that the employee merely needs to be qualified for the vacant position, not the most qualified, some courts disagree.
The complimentary webinar, EEOC's New Resource on Leave as an ADA Reasonable Accommodation: A Closer Look with EEOC Commissioner Chai Feldblum, was held at EEOC headquarters. There were about 3,600 attendees, according to Nowak.

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