Wednesday, July 6, 2011

EEOC Considers Use of Leave as a Reasonable Accommodation

Advocates for both employers and workers gathered in Washington, D.C., recently to give the Equal Employment Opportunity Commission their views concerning the use of leave as a reasonable accommodations for people with disabilities.  Not surprisingly, the witnesses disagreed about many employer and employee obligations.  The one thing almost all agreed on, however, was the need for clear and uniform guidance from the EEOC.

The Americans with Disabilities Act requires reasonable accommodations when necessary so that people with disabilities can perform the essential functions of their jobs, unless doing so would constitute an undue hardship to the employer.  Leaves of absence – including those beyond an employee’s permitted number of days off – can, in some circumstances, constitute reasonable accommodations.

“A period of leave – whether for medical treatment, recovery, or training to use adaptive equipment – is often the reasonable accommodation that permits a person with a disability to remain gainfully employed,” said EEOC Chair Jacqueline A. Berrien.  Commissioner Victoria Lipnic added, “Managing situations where employees need leave for medical conditions is one of the most vexing issues for both employers and employees.  Today’s meeting should educate employers about complying with the law and educate us at the EEOC about making these difficult situations more manageable, ultimately making us all more successful in keeping people with disabilities engaged in the workforce.”

The EEOC’s Assistant Legal Counsel in charge of ADA issues, Christopher Kuczynski, was especially critical of the “no fault” leave policies used by many employers.  Under those policies, employees are subject to discharge for missing a specified number of work days, regardless of the reason for the absences.  Kuczynski said that while many requests for leave can be handled under an employer’s regular leave policies, reasonable accommodation issues arise when an employer would not ordinarily allow the leave under a no-fault leave policy.  “These must be modified as a reasonable accommodation, absent undue hardship, if an employee with a disability needs additional leave,” he said.

[Lest anyone doubt that the EEOC is already cracking down on no-fault leave arrangements, the agency recently brought class action lawsuits against two employers with inflexible leave policies.  Both cases ultimately were settled, but the businesses had to pay millions of dollars in backpay, fines, and penalties, as well as rewrite their leave policies.  For example, here is the EEOC's press release regarding its $20 million settlement with Verizon Communications.]

The consensus among witnesses at the conference was, in the words of one, that the EEOC must provide “more detailed and defined examples of situations where maximum leave policies are called into question and provide examples of times when additional leave will be deemed necessary and when it will not.”  Most also agreed that the need for agency guidance is especially acute among smaller employers with a limited workforce and unsophisticated human resource personnel.

The EEOC is not obligated to adopt any particular position on the use of leave as a reasonable accommodation, nor does the fact that a hearing was held indicate that any rules or guidance are planned.  The information and testimony provided to the Commissioners will be considered by the agency as it goes about formulating its policies for enforcing the ADA and other workplace laws.

No comments: