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.