Employers Must Utilize Accommodation Process Following Leave of Absence
By Martha J. Cardi, Chief Compliance Officer, Reed Group
There has been a surge in the filing of charges and lawsuits under the Americans with Disabilities Act (ADA) reported in 2010. Total charges filed with the EEOC in 2010 increased by 7.1% over charges filed in 2009. Of these, charges alleging violations under the ADA showed the biggest increase, up 17% from the number of disability-related claims filed in 2009. This trend is expected to continue, following the issuance of the ADAAA Final Rule effective May 24, 2011.
The Equal Employment Opportunity Commission (EEOC) is currently challenging company policies or practices of terminating employees following a leave of absence without going through the accommodation process; that is, without consideration of whether the employee might be entitled to extended leave or some other workplace accommodation under the ADA. This EEOC activity has resulted in consent decrees against several companies in settling the EEOC complaints against them, including the entry of millions of dollars in judgments against the companies.Some examples follow:
1. Supervalu, Inc., Jewel Food Stores, Inc., and related companies (Jewel-Osco): The EEOC sued Jewel-Osco over its practice of terminating employees with disabilities who were not 100% recovered at the end of medical leaves of absence rather than considering return to work with a reasonable accommodation. The January 2011 consent decree requires Jewel-Osco to:
- Pay $3.2 million to 110 former employees
- Train employees involved in making accommodation decisions on the ADA and possible workplace accommodations
- Hire consultants to review and recommend changes to current job descriptions and possible accommodations for common disability work restrictions for various positions
- Report regularly to the EEOC on its efforts to accommodate employees with disabilities who are attempting to return from medical leaves of absence
- Revise its communications to employees with disabilities to reflect new policies and the availability of possible accommodations
2. United Airlines: United required all reservation sales representatives on disability leave to either retire or go out on extended leave; United then terminated them when their leave ran out. The EEOC contended that United’s failure to consider whether reduced hourly schedules was a reasonable accommodation violated the ADA. In a December 2010 consent decree United agreed to:
- Pay $600,000 to a group of affected reservations agents
- End the termination practice
- Report to the EEOC for the three-year duration of the decree
3. Sears, Roebuck and Co.: The EEOC attacked Sears’ alleged practice of terminating employees following exhaustion of Workers’ Compensation leave without engaging in the interactive accommodation process, specifically by failing to consider workplace accommodations or even a slight extension of leave as an accommodation. The late 2009 consent decree with the EEOC requires Sears to:
- Pay $6.2 million to class claimants
- Change its policy
- Provide written reports to the EEOC to verify its compliance with the ADA
- Train its employees
- Post a notice of the consent decree at all Sears locations
Individual Cases Pose Risks Also
While the EEOC is actively seeking out employers guilty of “systemic” ADA failures to accommodate (those occurring company-wide due to inappropriate policies and practices), employers must also beware of individual cases based on end-of-leave claims. In a recent case from California brought under the Fair Employment and Housing Act (which has employer obligations similar to the ADA), the appeals court upheld a $1.5 million verdict against the employer for failing to engage in the interactive process and provide alternate duty to an injured police officer.
In this case, a Los Angeles Police Department field officer was injured on the job. The officer was assigned by the LAPD to a desk job, consistent with the department’s practice of assigning disabled police officers to “permanent light duty.” After the officer started this assignment, the department learned of his 100% disability rating under Workers’ Compensation rules. Without any evaluation of his capabilities, the officer was told that he could not continue to work with a 100% rating, even though he performed his new permanent light duty job’s essential functions without problem. On appeal, the court found that the LAPD failed to:
- Engage in the interactive process to determine whether there was any reasonable accommodation to get the employee back to his original job
- Consider alternate open positions for which the employee is qualified
The court stated: “In addition to considering… Workers’ Compensation issues, the City should have independently evaluated Plaintiff’s situation with reference to FEHA. … [I]f the City had concerns about [the officer’s] restrictions, it had an affirmative duty to engage in an interactive process and to make an effort to accommodate Plaintiff, rather than simply take him off the job.”
The department’s leave of absence process lacked the crucial step of engaging in the FEHA or ADA interactive accommodation process before termination of an employee at the conclusion of a leave. The department’s failure to employ this individualized process in favor of an unbending rule that relied on a disability rating proved to be a costly mistake.
Cuiellette v. City of Los Angeles (Cal. Ct. App. Apr. 22, 2011)
Three Steps Employers Should Take
In this atmosphere, it is important for employers to be proactive in order to minimize the risk of ADA-related claims going forward. Here are some suggestions:
1. Analyze each company policy relating to a leave of absence due to the employee’s own health condition:
- Review end-of-leave practices to ensure that the company does not have a set or inflexible rule that calls for termination when an employee cannot return at the completion of a leave taken.
- Build the interactive accommodation step into all leave of absence management processes.
- Require an individual assessment of the employee’s situation at the end of a leave of absence, including consideration of whether the employee is entitled to a reasonable accommodation despite the exhaustion of leave (e.g., an extended leave, return to work with a reduced or modified schedule or duties, a workplace accommodation such as special equipment or accessibility modifications).
- Include in the review all medical-based leave policies: Workers’ Compensation, FMLA and similar state leave laws, company leaves, short- and long-term disability leaves, etc.
2. Review and update all job descriptions to ensure they include all of the essential functions of each position.
3. Provide training to managers and supervisors (and HR personnel if needed) regarding the requirements of the ADA and the ADAAA. They should be the company’s front-line issue-spotters and must understand the importance of their attitude and assistance toward disabled employees in avoiding ADA charges.
What is Reed Group Doing About the ADAAA Final Rule?
Reed Group is educating all of its absence management personnel on the issues raised above, as well as other information relating to the ADAAA and the Final Rule. Reed Group offers ADA accommodation as
an addition to our absence management services. However, those clients who do not presently use our ADA services still benefit from the knowledge provided to our Leave Specialists on the impact of the ADA, the recent amendments and new regulations when providing comprehensive, sound advice and services.
If you have any questions about Reed Group’s ADA accommodation management services, please contact your Account Executive or firstname.lastname@example.org.
By Martha J. Cardi, Chief Compliance Officer, Reed Group
The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) made important changes to the definition of the term “disability” to make it easier for an individual seeking protection to establish that he or she has a disability within the meaning of the ADA.
The employment law world has been waiting for over two years for the issuance of regulations interpreting the ADAAA. That wait is now over: The final regulations, known as the “Final Rule,” were published in the Federal Register on March 25, 2011.
No doubt, by now you have already seen many newsletter and blog articles summarizing the new regulations. In tandem with the issuance of the Final Rule, the EEOC itself has published interpretive materials that explain the ADAAA and the Final Rule. At the end of this article are links to the EEOC materials. These materials and other websites, newsletters, or blogs effectively explain in general the changes to the ADA wrought by the ADAAA and its new regulations.
Reed Group has analyzed how these changes impact leave of absence management. For simplicity, we will refer to the “ADA” and the “regulations” to encompass both the originals and the recent amendments, unless a distinction is important.
1. Build the ADA Interactive Accommodation Step into All Health-Related Leave of Absence Management Processes
Many employers mistakenly treat their obligations under the ADA separate from and unrelated to their management of health-related leaves of absence under the Family Medical Leave Act (“FMLA”), similar state leaves, company medical or disability leaves and Workers’ Compensation. With the passage of the ADAAA and the Final Rule, it is more important than ever to integrate the ADA accommodation process into all leave procedures. The “disability” threshold is now lower, which makes it easier for an employee to come under the protection of the Act. According to Congress and the EEOC, what constitutes a disability should not require extensive analysis. The focus is now on whether the employer attempted to accommodate the employee’s impairment, and whether the employer discriminated against the employee because of his or her disability.
Accordingly, when administering an employee’s leave of absence, employers must consider the applicability of the ADA when the employee’s leave is exhausted or denied. This may include an extension of a leave previously granted under law or a company policy, or it may mean granting a leave of absence when the employee is not otherwise entitled to one (such as when the employee is not eligible for FMLA leave). An employer’s duty to engage in the interactive process and make a reasonable accommodation is not necessarily fully satisfied upon the employee’s return to work from leave, even if that leave was provided all or in part as an accommodation under the ADA. If the returning employee is disabled or now has a record of a disability, the employee may need – and be entitled to under the ADA – additional accommodations upon return to work, such as time off for doctor’s appointments or therapy sessions, or physical workplace modifications such as accessibility changes or special equipment.
The employer may also have a duty to accommodate an employee no longer impaired but with a record of impairment, for example if follow-up doctors’ appointments, tests, or therapy is needed and related to the past disability. 29 C.F.R. § 1630.2(k)(3).
Reed Group has long encouraged employers to make the interactive accommodation process a part of their leave of absence procedures. See, e.g., articles in Reed Group’s recent newsletters: $3.2 Million Decree Reminds Employers: Leaves Of Absence And ADA Accommodation Go Hand In Hand, 2011 First Quarter, http://www.reedgroup.com/resources/ReedGroup-Newsletter-0211.pdf; and Following FMLA Leave, Don’t Forget The Ada Interactive Accommodation Process!, September 2010, http://www.reedgroup.com/resources/ReedGroup-Newsletter-0910.pdf.
2. “We Don’t Allow That for Other Employees” Doesn’t Avoid ADA Accommodation Obligations
Employers frequently struggle with providing a disabled employee with a workplace or position modification that other employees have requested and been denied. The accommodation obligation under the ADA has always required employers to amend workplace rules or policies or to provide special aid, equipment, or other assistance if necessary to enable an otherwise-qualified disabled employee to perform the essential functions of his position.
The Final Rule has made this clear by specifying that non-disabled employees do not have a reverse discrimination claim for being denied the same treatment afforded to the disabled employee:
Claims of no disability. Nothing in this part shall provide the basis for a claim that an individual without a disability was subject to discrimination because of his lack of disability, including a claim that an individual with a disability was granted an accommodation that was denied to an individual without a disability.
29 C.F.R. §1630.4(b).
3. Definitions of “Disability” Vary Greatly
The definition of a “disability” for purposes of ADA protection can differ greatly from the definition for other purposes. The ADA employs a “three-pronged” definition:
- A physical or mental impairment that substantially limits one or more major life activities as compared to most people in the general population (an “actual disability”), or
- A record of a physical or mental impairment that substantially limited a major life activity (“record of”), or
- When a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”).
29 C.F.R. § 1630.2(g)
The regulations provide extensive and detailed definitions of “physical or mental impairment,” “major life activity,” “substantially limits,’ and other key terms. Specifically, the Final Rule notes that whether an impairment “substantially limits” a major life activity is at a lower threshold than it had been prior to the ADAAA.
Compare the various components of the ADA definition of a “disability” in the Final Rule with a “serious health condition” under the FMLA and similar state leaves or with the definitions of disability under company short- or long-term disability plans, company medical leaves, etc. No two are alike. Thus, for example, a determination that an employee does not qualify for STD benefits does not obviate the need to analyze whether the same employee with the same condition might be entitled to a workplace accommodation or an additional leave of absence under the ADA.
The Final Rule explicitly recognizes the possibility of differing definitions of disability:
Nothing in this part alters the standards for determining eligibility for benefits under State Workers’ Compensation laws or under State and Federal disability benefit programs.
29 C.F.R. § 1630.1(c)(3).
4. The Reduced Threshold for “Disability” May Impact Other Employee Leave Rights
Some legal obligations surrounding leaves of absences are tied to the ADA definition of a “disability.” The change in the definition will make it much easier for individuals to demonstrate that they meet this definition
for other purposes.
For example, the FMLA provides a parent with leave of absence to care for an adult child (age 18 or older) only if the adult child is “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence. For this purpose “physical or mental disability” is defined with reference to the ADA regulations, as amended by the Final Rule.
Thus, in determining whether a parent may take leave to care for an adult child with a serious health condition, the more-easily-satisfied definition of a “disability” will apply.
5. Beware of “Regarding” an Employee as Disabled
In what may seem like a Catch-22, the “regarded as” disability protection may present difficulties to employers assessing an employee’s mental or physical condition for other purposes. “Regarded as” discrimination occurs when an employer takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory (expected to last less than six months) and minor. 29 C.F.R. § 1630.2(g)(1)(iii). An employee who is not
“disabled” under the ADA may nonetheless have a physical or mental condition for which he is entitled to consideration for a leave of absence under other laws or benefits, such as the FMLA or a company leave policy. Without using care in how the employee’s condition is assessed, and regardless of whether the employee receives a leave of absence based on other laws or policies, the employer may create ADA liability for itself by taking prohibited actions due to its perception with regard to the employee’s condition, even though the employee is not disabled for the purposes of the ADA.
There is one glimmer of good news for employers in the Final Rule. An employer is not required to provide a reasonable accommodation to an individual whose only ADA claim is that he was “regarded as” disabled. 29 C.F.R. § 1630.2(o)(4).
With the passage of the ADAAA and the Final Rule, employers must be more alert than ever of their duties under the ADA. Conditions not previously considered a disability under the Act are now protected conditions almost automatically. Training of supervisors and incorporation of the interactive accommodation process into all health-related leave of absence policies and procedures are an employer’s best lines of defense and should be undertaken immediately.
Resources available from the EEOC website: