One item rather frequently requested by our visitors is a handy guide to the interplay among the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA) and workers’ compensation (WC).

Ask and you shall receive …

Click here for our brand-new ADA vs. FMLA vs. WC Cheat Sheet. Thanks to the fine folks at McGuire Woods LLP for their assistance in putting this together!

Background

As discussed previously here and here on the Blawg, the EEOC is openly targeting inflexible leave policies.

Leave can constitute a reasonable accommodation under the Americans with Disabilities Act (ADA) as long as it doesn’t impose undue hardship. That’s exactly the rub. Employer advocates often take the position that indefinite leave is unreasonable and that employers can require employees to return after a set period or be terminated. The EEOC disagrees.

A few weeks ago, the EEOC held a public meeting to discuss the issue. It plans to issue formal guidance on the subject in a few months.

The Claims

In this case, the EEOC alleged that the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or terminated them pursuant to “no fault” attendance policies. The EEOC claimed that the company violated the ADA by refusing to make exceptions to its policies to accommodate employees with disabilities.

More specifically, the EEOC took exception to the company’s practice of placing employees who accumulated a number of “chargeable absences” into a progressive discipline system that could result in discharge.

The Record

According to the EEOC, this resolution is the largest disability discrimination settlement in its history. The press release announcing the settlement also noted that the past year had a record number of discrimination charges nationally (25,165) — up 17.3% over the prior year.

What This Means For Employers

Here’s what the EEOC said: “This settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities.”

What exactly should employers do? Here are some suggestions:

1. Know the ADA (especially the new ADAAA regs) and remember that the definition of “disability” is extremely broad.
2. Take a good, long look at any leave policies that could be perceived as overly rigid by the EEOC. Any policy that imposes a maximum leave amount without exceptions could be subject to scrutiny.
3. Engage in the ADA-mandated interactive process with any employee with a disability who requests extended leave.
4. Call the Job Accommodation Network to discuss any thorny accommodation issues. It’s free and the EEOC loves it when you seek their guidance.
5. Ask your favorite employment lawyer to help you determine whether a leave-related accommodation is (1) reasonable or (2) imposes an undue hardship under the law. That’s not always an easy analysis.

So, what happened? Here are the highlights . . .

The Issue

Leave can constitute a reasonable accommodation under the Americans with Disabilities Act as long as it doesn’t impose undue hardship.

That’s exactly the rub. Employer advocates often take the position that indefinite leave is unreasonable and that employers can require employees to return after a set period or be terminated. The EEOC disagrees.

That disagreement has led to some humongous settlements. In 2009, the EEOC settled a case for $6.2 million with a large retailer it alleged had an excessively rigid leave policy. Earlier this year, the EEOC settled a similar case for $3.2 million.

The Discussion

The EEOC issued a press release with its take on the session. Others weighed in as well.

In short, EEOC and employee advocates asserted that inflexible leave policies violate the ADA’s “reasonable accommodation” requirement because they don’t allow for individualized fact-specific determinations. The EEOC made it crystal clear that it intends to continue aggressively pursuing “pattern and practice” cases against employers who enforce such policies.

Employer advocates agreed that leave may be a reasonable accommodation but vigorously questioned the burden the EEOC’s position puts on employers (especially small businesses). One advocate called for the EEOC to 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.”

What’s Next?

The EEOC announced that it will accept additional written comments on this issue through June 23.

Want to express yourself? You can email your comments to Commissionmeetingcomments@eeoc.gov or mail ‘em to:

Commission Meeting
EEOC Executive Officer
131 M Street, N.E.
Washington, D.C. 20507

The EEOC plans to issue its official written guidance on this subject in a few months. So, speak now or forever hold your peace.

Want More?

Additional info about this meeting, including a video of the proceedings and written witness statements is available here.

Surprisingly few people are talking about the final rule recently issued by the EEOC implementing the ADAAA. Here are the highlights.

What employers are covered? Those with 15 or more employees.

Effective date. 60 days after the publication of the regulations on March 25.

Easier to establish a covered “disability.” The ADAAA overturned several Supreme Court decisions that Congress believed interpreted the ADA disability definition too narrowly. The ADAAA expressly states that the definition of “disability” and “regarded as” should be interpreted in favor of broad coverage.

Same “disability” definition but broader interpretation. The basic definition of a covered disability remains the same — a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. However, the EEOC stresses that the ADAAA and new regulations are designed to ensure broad interpretation of each of those key terms.

Rules of construction. According to the EEOC, the regulations “implement Congress’ intent to set forth predictable, consistent, and workable standards by adopting ‘rules of construction’ to use when determining if an individual is substantially limited in performing a major life activity.” Those rules include:

• “Substantially limits” construed broadly. “Substantially limits” requires a lower degree of functional limitation than the standard previously required by courts. A condition need not prevent or significantly restrict a major life activity to be considered “substantially limiting.”
• Individualized assessment. The determination of whether a condition substantially limits a major life activity requires an individualized assessment, as was true prior to the ADAAA.
• Don’t consider mitigating measures. With the exeception of “ordinary eyeglasses or contact lenses,” the determination of whether a condition substantially limits a major life activity must be made “without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.”
• Do consider episodic or remission conditions. Such conditions are covered disabilities if they substantially limit a major life activity.
• No extensive analysis required. The EEOC says that “in keeping with Congress’ direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.”

Reasonable accommodation. The regulations clarify that an individual must be covered under the ADA’s first prong (“actual disability”) or second prong (“record of disability”) to qualify for reasonable accommodation.

Conditions that “virtually always constitute a disability.” The regulations provide examples of conditions that “should easily be concluded to be disabilities,” including bipolar disorder, cancer, diabetes, epilepsy and HIV infection.

Q&A. Click here for a Q&A prepared by the EEOC and here for one specific to small businesses.