So, back in January, I penned a post titled “Can You Fire an Employee Who Has Exhausted FMLA Leave?”
As if to respond, the EEOC yesterday released guidance that basically answers: Not necessarily, because it might violate the Americans with Disabilities Act.
And that is the crux of the issue for employers.
Before I go further, let’s remember one thing: The ADA is a statute that demands flexibility. It requires that employers provide “reasonable accommodations” to employees to enable them to perform the essential functions of their job.
The EEOC’s guidance tries to explain this flexibility in various ways. Sometimes it clarifies the situation; but in other ways, the guidance only serves to create more questions for employers to ponder.
1. Equal Access to Leave Under an Employer’s Leave Policy. This is fairly straightforward; the same leaves of absence rules applicable to employees without disabilities should be applied to those with disabilities.
2. Granting Leave as a Reasonable Accommodation. The EEOC’s continues to argue that an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.
3. Leave and the Interactive Process Generally. The EEOC reminds employers that when an employee requests an accommodation such as leave (and note: such requests rarely come in a neat fashion like “I hereby invoke my rights under the ADA for a reasonable accommodation”), the employer should promptly engage in an “interactive process” with the employee. This process should focus on the specific reasons the employee needs leave, whether the leave will be a block of time or intermittent, and when the need for leave will end. Even under this instance, the employer may consider the “undue hardship” the leave may have on the workplace.
4. Maximum Leave Policies. Although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, the EEOC argues that employers may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship. Thus, policies with hard caps may violate the ADA.
5. Return to Work and Reasonable Accommodation (Including Reassignment). In this section, the EEOC argues that employers should avoid “100% Healed” policies, which require that an employee be fully recovered before returning to work. A temporary transfer to a vacant position might allow the employee to return earlier while the employee continues to heal, for example. Again, the notion of a “reasonable accommodation” and flexibility controls.
6. Undue Hardship. For employers, this may be the last safeguard and one that might need to be used more. For example, an employer might argue that the duration and frequency of the leave, and the impact on the employer’s business, make such a leave too difficult under the circumstances. A big plus for employers, however is that an “indefinite leave” — meaning an employee cannot say whether or when she will be able to return to work at all — “will constitute an undue hardship”. But overall, employers will need to examine such requests on a case-by-case basis.
Jon Hyman of the Ohio Employer Law Blog suggests in his post today that this guidance “goes a long way to answering many of the questions employers will have.” I respectfully disagree with Jon. The EEOC’s guidance is an aggressive approach to the law that has yet to be fully tested by the courts. Rather than create clarity, the guidance pushes the boundaries as to what employers should do. And CT’s anti-discrimination laws have their own requirements which may (or may not) mirror all of the ADA’s requirements.
For example, if an employee cannot do the essential functions of the job he or she was hired for with a reasonable accommodation, why is it reasonable to assign them permanently to another job?
That’s not to say that employers should turn a blind eye to those with disabilities or those in need to some extra time in some circumstances. I’m not advocating that at all; being understanding of your employees is vital being a good employer. And there will be instances where employers will do all that it can to keep a valued employee.
But I worry about the situations in which an employee is abusing leave; there has to be an end point. A point at which the employer can legitimately say “enough is enough.”
And with the EEOC’s guidance, that end point remains as muddy as ever.