Pushing Back on the “Inadvertent Leave Law” – Court Rules that a Multi-Month Leave of Absence is not a Reasonable ADA Accommodation

Posted on: September 26, 2017 0

By Marti Cardi, VP-Product Compliance
& Gail Cohen, Director-Employment Law/Compliance

“How long of a leave of absence do I have to grant as an accommodation under the Americans with Disabilities Act?”

I get this question frequently.  I have long advised that employers must consider a new or extended leave of absence as a possible accommodation.  In assessing an employee’s ADA leave request, employers need to look at what the employee will be doing during that leave: Rehabilitative therapy?  Trying new medications?  Learning to work with an assistive device or a support animal?  Maybe recovery from surgery or an injury? 

The Equal Employment Opportunity Commission agrees with me – or rather, I have come to agree with the EEOC.  EEOC Commissioner Chai Feldblum is often quoted as calling the ADA an “inadvertent leave law.”  And indeed it is – the ADA was not designed to be job-protected medical leave of absence.  Rather, the basic goal is to enable the disabled employee to work – with a reasonable workplace accommodation if needed.  But for years, the Commission’s guidance has been that leave is a reasonable accommodation as long as it is of a (somewhat) definite duration and will enable the employee to perform his essential functions upon return to work.  

The 7th Circuit Court of Appeals begs to differ.  In a recent case, the court ruled that an employer did not fail to provide a reasonable accommodation when it denied an employee’s request for a 2-3 month continued leave of absence after exhaustion of FMLA.

The Facts.  Raymond Severson worked for Heartland Woodcraft, Inc., a fabricator of retail display fixtures from 2006 to 2013.  His position was physically demanding, often requiring him to lift 50 pounds or more.  Raymond had a back problem that first manifested itself in 2005.  During flare-ups, the condition made it difficult or impossible for Raymond to walk, bend, lift, sit, stand, move, and work. 

Raymond had generally performed well and received promotions over the years but was having difficulty in his latest position.  He met with management on June 5, 2013, and accepted a demotion to second-shift lead, but never commenced work in that position.  Earlier the same day, Raymond wrenched his back at home exacerbating his back condition and was in obvious pain as a result.  He left work after the meeting with managers and then requested continuous FMLA leave due to his back. 

 During his FMLA leave Raymond stayed in touch with Heartland’s HR representatives.  He received periodic extensions of his leave based on medical reports that showed he had multiple herniated and bulging discs in his spine.  In mid-August, after steroid treatments yielded little improvement, Raymond informed HR that he was going to have back surgery on August 27 – the last day of his FMLA entitlement – and would need 2-3 more months of leave as an ADA accommodation.  Heartland denied this request but told Raymond he was welcome to reapply when he was able to return to work.  

Raymond never reapplied for work.  Instead, he chose to sue Heartland for failure to accommodate.  Oh, Raymond!  You should have taken a different path!

“The ADA is an antidiscrimination statute, not a medical-leave entitlement.”  So says the 7th Circuit.  After analyzing the relevant sections of the ADA, the court stated:

A “reasonable accommodation” is one that allows the disabled employee to “perform the essential functions of the employment position.”  If the proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a “qualified individual” as that term is defined in the ADA.

Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.  [Citations omitted.]

And this:  

A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.

The court acknowledged the possibility that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances, such as occasional flare-ups of arthritis or lupus.  

Intermittent time off or a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work schedule, two of the examples listed in [the ADA].  But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. [Citations omitted.]

Of interest and some degree of persuasion, the court compared the FMLA and the ADA as “leave of absence” statutes: 

If, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute—in effect, an open-ended extension of the FMLA.  That’s an untenable interpretation of the term “reasonable accommodation.”

So there we have it.  According to the 7th Circuit, a leave of absence as an ADA accommodation is not reasonable if it is expected to last more than “a couple of weeks,” or if it will “span[ ] multiple months.”  

Employers have some similar comfort from the 10th Circuit in the case Hwang v. Kansas State University (2014).  In that case, the court ruled that a 6-month leave was not a reasonable accommodation:

 It’s difficult to conceive how an employee’s absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today.  Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.

As the court said, ADA accommodations are “all about enabling employees to work, not to not work.”  You can read a great summary of the Hwang case on Jeff Nowak’s FMLA Insights blog here

Other than these two decisions, we are not aware of any other federal appellate court that has addressed how long of a leave is a reasonable accommodation under the Amendments Act (ADAAA).  [The 7th Circuit includes the states of Illinois, Indiana, and Wisconsin within in its jurisdiction; the 10th Circuit includes Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.]

Employers, continue to tread softly and act wisely.  Don’t throw caution to the wind just because one or two courts have issued a reasonable opinion.  See our Pings below for recommendations on how to assess requests for leave under the ADA Amendments Act (ADAAA). 

Severson v. Heartland Woodcraft, Inc. (7th Cir. Sept. 20, 2017) 

Pings for Employers

Don’t ignore the possibility of leave as a reasonable accommodation.  Nothing in the 7th Circuit’s ruling changes the employer’s obligation to consider more leave of absence as a reasonable accommodation following the exhaustion of other job-protected leaves such as FMLA or a company policy of allowing a set amount of medical leave.  Any inflexible leave policy could still be an ADA violation.  Read more on this topic at our blog post regarding an EEOC/Lowe’s $8.6 million consent decree. 

Don’t forget the interactive process.  Although the ADA does not require an employer to engage in the interactive process (check out footnote 1 in the Severson opinion), that is still the best way to ensure that you are fulfilling your ADA obligations to consider a reasonable accommodation upon request by a disabled employee.

Review the EEOC’s resource document on leave as an ADA accommodation.  It is always a good idea to understand the EEOC’s thinking on a tough issue, and they have shared with us in their resource document, Employer-Provided Leave and the Americans with Disabilities Act, issued May 9, 2016

 If you are thinking of denying an ADA request for leave as an accommodation, consult with your employment counsel.  Even in the 7th and 10th Circuits, this is still a tricky issue.  And, the EEOC will likely reject this case in its own proceedings.

 MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation decisions, including leave assessment of leave of absence requests.  You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialist is at the ready with practical advice and expert guidance.  To learn more, contact us at ping@matrixcos.com

Don’t Forget About Accommodation Obligations during the Application Process – The EEOC is On It!

Posted on: March 24, 2017 2

By Gail Cohen, Director-Employment Law/Compliance

& Marti Cardi, VP-Product Compliance

It appears the Equal Employment Opportunity Commission has added a new focus to its enforcement efforts.  In its latest Strategic Enforcement Plan, the EEOC announced that one of its national priorities is for “the Commission to address . . .  issues involving hiring barriers and the ADA.”  Many of the recent settlements by the EEOC highlight just how seriously the EEOC is taking this strategic priority, in particular regarding applicants who request a reasonable accommodation in the pre-employment processes.  Here are a couple of examples:


EEOC Settlement on Behalf of Trucking Applicant for Failure to Accommodate

An applicant for a truck driver position with Covenant Transport sought accommodation, on the basis of his medical condition, to have a blood test instead of providing a urine sample in connection with the company’s pre-employment drug screening.  The EEOC filed suit, alleging that the company initially agreed to this request for accommodation, but ultimately reneged and declined to hire him because he could not submit a urine specimen for testing.

The oddest part of the settlement is that it requires Covenant to develop a written drug testing policy (surprised they did not have one already!) and to provide 90-minute trainings annually on the policy (that’s a long time to discuss one policy!) to its recruiters and head of safety. Covenant also agreed to pay $30,000 to the applicant.

EEOC Press Release 02-24-2017

Cell Phone Repair Facility Settles EEOC Lawsuit on Behalf of Two Applicants Denied Reasonable Accommodation.

As part of its hiring process, S&B in Fort Worth, Texas, required applicants to participate in a “group interview” with prospective supervisors. During this interview, the EEOC contended that the two applicants on whose behalf it brought this lawsuit were observed to be engaging in American Sign Language to communicate with each other. They asked that the supervisors provide them with written questions.  The lawsuit alleged that the supervisors initially did so, then declined to continue and told both applicants the company would not hire them.

This lawsuit cost S&B $110,000 but, as you no doubt can guess by now, the EEOC imposed additional requirements on S&B to settle.  The company is also required to maintain a written log of all disability-related complaints and report semi-annually to the EEOC.  In addition, managers, supervisors, and HR personnel are required to attend a training conducted by a Dallas advocacy center for deaf individuals on the use of sign interpreters in interview and employment settings.

EEOC Press Release 02-23-2017


Pings for Employers:

Remember that the ADA applies to applicants as well as current employees. The prospective employer must provide reasonable accommodation(s) to applicants for known disabilities to assist them through the application process.

Train internal recruiters and interviewing personnel on the requirements of the ADA, so that they recognize and respond appropriately to a request for an accommodation during the application process.

Establish a culture of disability acceptance and recognition of each individual’s capabilities, not their disabilities.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Pregnancy Issues Continue to Expand: Company Fired Pregnant Employee For Her Own Good

Posted on: February 17, 2017 1

By Marti Cardi, VP-Product Compliance

Enforcement and legislative attention continue to increase around pregnant employees and pregnancy-related conditions in the workplace.  The message to employers?  Treat a pregnant employee poorly – or differently – at your peril.  Rooms to Go learned this lesson recently, even though the pregnant employee’s manager seemed to be acting in the employee’s best interest.

The Case.  RTG Furniture Corp. (RTG) operates a chain of Rooms to Go furniture stores and distribution centers nationwide.  After being sued by the Equal Employment Opportunity Commission (EEOC), the company has agreed to pay $55,000 and provide other relief.

According to the EEOC’s complaint, the company hired Chantoni McBryde on June 1, 2015, and assigned her to work as a shop apprentice at the company’s temporary training facility in Dunn, N.C. The job required the use of various chemicals to repair furniture. On June 3, McBryde informed the company’s shop trainer that she was pregnant. Later that same day, McBryde was called into a meeting with the company’s regional shop manager and others and was asked to confirm that she was pregnant. The EEOC said that during the meeting, the regional shop manager showed McBryde a can of lacquer thinner that contained a warning that the contents could potentially pose a risk to a woman or her unborn child, and discussed the warning with McBryde. The EEOC said that McBryde was then told that because she was pregnant, she could no longer work at the facility.  If true, this conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA), which prohibits employers from terminating workers because they are pregnant.

As is common in settlements of EEOC lawsuits, the company agreed to other provisions in addition to providing monetary relief to McBryde.  The three-year consent decree between RTG and the EEOC requires RTG to develop and implement a policy that prohibits pregnancy-based discrimination; to conduct annual pregnancy discrimination training for employees, supervisors, and managers at certain facilities; to post a notice about the lawsuit and employee rights under federal anti-discrimination laws at those same facilities; and to provide periodic reports to the EEOC.  Thus, while the $55,000 judgment may seem like something your company could handle, this type of extensive oversight and training obligation is far more intrusive and onerous.

According to the EEOC, “Pregnant women have the right to make their own decisions about working while pregnant, including the risks they are willing to assume.  If there may be a potential health concern, it is up to the woman and her doctors to evaluate. Companies must not impose paternalistic notions on pregnant women, as doing so can result in unlawful discrimination.”  EEOC Press Release 02-03-2017

Sources of Pregnancy Protections.  Here are some of the state and federal laws that provide protections for pregnant workers:

  • The federal Pregnancy Discrimination Act, passed in 1978 as an amendment to Title VII, prohibits sex discrimination on the basis of pregnancy. Pregnant women who are able to work must be permitted to work under the same conditions and must be treated the same as non-pregnant employees.  The EEOC will broadly interpret when pregnancy-related conditions are considered disabilities under ADA.
  • The federal Family and Medical Leave Act defines a “serious health condition” to include pregnancy and provides up to 12 weeks of leave for prenatal care and pregnancy-related conditions.
  • Under the Americans with Disabilities Act, a “normal pregnancy” is not a disability – but a “pregnancy-related impairment that substantially limits a major life activity” can be a disability.
  • State laws – as of 2016:

Virtually all states have provisions similar to the Pregnancy Discrimination Act in their civil rights laws.

Approximately 12 states have laws specifically requiring employers to grant a leave of absence for pregnancy disability.

Approximately 17 states have laws requiring accommodation of pregnancy-related conditions in the workplace – even if not a “disability.” “Common conditions of pregnancy” must be accommodated.  Accommodations can include leave of absence as well as breaks, equipment, modified schedules or duties, light duty, etc.

Many more state pregnancy leave and accommodation laws have already been introduced in 2017. Watch this blog for announcements if/when they pass.

Pings for Employers

Treat pregnancy the same as other temporary disabilities – unless a law specifically requires more favorable treatment.

Consider whether your policies and practices provide equal treatment for pregnant employees with regard to:

  • Amount of paid/unpaid leave for a temporary disability.
  • Availability of light duty – it is NOT just for worker’s compensation claimants.
  • Workplace accommodations (equipment, modified duties or schedule, breaks, leave of absence, food or drink at a workstation, etc.).
  • Any other term, condition, or benefit of employment.

Also, be familiar with the federal laws identified above and the laws of your state. What protections do they provide for pregnant employees?  What do you need to do to be compliant?

Review the EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues. Issued in 2014 and revised in 2015; this is a comprehensive guidance regarding treatment of pregnant employees under various federal laws.


UPCOMING EVENT!  I will be presenting at the DMEC Denver Chapter Meeting on the topic “Employers: Beware of Caregiver Protections!” Thursday February 23 at 2:30.  I will address the pregnancy issues discussed above and much more.  Please join me!  Click on the link for more details and to sign up.

For more information on the caregiver topic, see our post What Employers Need to Know about Caregiver Protections under the ADA, FMLA, Title VII… and in California.

                                                           

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Breaking news! Matrix’s new experience data provides the first clear snapshot of employers’ ADA exposure

Posted on: July 13, 2016 4

By Marti Cardi, VP-Product Compliance

I am proud to announce that Matrix has unveiled the first credible benchmarking and data analysis of employer experiences related to the Americans with Disabilities Act (ADA). The data is important for three reasons:

  • As a way to benchmark the experience of specific employers who manage ADA leave and accommodation requests
  • As a means of assessing the potential exposure of those who don’t
  • As an illustration of the reach of ADA, including the expansive Amendment Act (ADAAA) of 2008.

“Matrix is unique in the market with comprehensive, statistically validated data and the expertise to recommend policy and practice,” Ken Cope, president of Matrix, said. “While ADA compliance is among the fastest growing concerns of employers across the board, there is precious little objective information and guidance on how to navigate the legal, operational and productivity implications. Our early leadership has created the industry’s first body of knowledge from which employers can anticipate, model and improve their organizations’ management of ADA issues.”

The statistical analysis is based on a review of more than 4,300 accommodation requests collected over a time period of at least 12 months from employers representing a universe of 120,000 employees. Matrix will continue to expand this data as we manage ADA accommodations for our ever-increasing slate of clients over time.

“A-hah!” findings Previous Matrix research revealed two of three responding employers did not even track ADA accommodation requests. The new data underscores not only the status of ADA compliance, but the scope of the challenge itself.

Some of the insights provided by the new Matrix benchmark analysis include:

  • Accommodation request incidence per 100 employees, by age, gender and work status (e.g. exempt or non-exempt)
  • Accommodation request types, leave vs workplace accommodations
  • Accommodation request outcomes
  • Correlation with other types of employee absences, e.g. FMLA, workers’ compensation, disability

According to Cope, one of the most valuable things we learned is that employee disability incidence is consistently being understated. Statistics show that approximately one in five individuals have a “disability” covered by the ADA – but employer experience showed far fewer employees requesting workplace accommodations.  Without a good system to receive accommodation requests and manage the interactive process, employers are overlooking many employees with disabilities and inviting the scrutiny of the ADA enforcement watchdog, the EEOC. In addition, fully half – 52 percent – of all accommodation requests are unrelated to employee leave, meaning any platform or management approach that addresses only leaves is missing the boat, and potentially doing more harm than good.

During the relatively short time data has been collected and analyzed, a key metric has changed, according to Cope: “In the very beginning we counted accommodation requests as the primary indicator of volume and organizational impact,” he said. “We quickly found out a more meaningful metric is ‘events,’ the precipitating cause of an accommodation, which often results in multiple requests, both leave and workplace-related. This was an early ‘a-hah!” moment,’” he said.

Highlights of the Matrix analysis and copies of the company’s whitepaper, ADA Accommodation Data: An Inaugural Benchmark Analysis, will be available at the Disability Management Employer Coalition (DMEC) annual conference in New Orleans July 18-21.

Still More on Leave of Absence as an ADA Accommodation – Jeff Nowak and EEOC Commissioner Feldblum to Co-Star

Posted on: May 26, 2016 1

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director, Compliance & Employment Law

The absence management world has been abuzz lately due to the release by the EEOC of a new resource document, Employer-Provided Leave and the Americans with Disabilities Act.  I wrote about this document and the latest EEOC consent decree – $8.6 million against Lowe’s due to its maximum leave policies – here and here.

Now, in an industry coup, my friend and fellow blogger Jeff Nowak will present a webinar on the new EEOC resource and leave as an ADA accommodation together with guest star, EEOC Commissioner Chai Feldblum.  For those of you who haven’t had the experience of hearing Commissioner Feldblum speak, you are in for a treat.  She is extremely knowledgeable, frank, and outspoken.  Jeff invites us to send our toughest ADA leave accommodation questions for the Commissioner to him at jsn@franczek.com.

Visit Jeff at FMLA Insights to learn more about the webinar and register, or you can register through the link below.

When: Thursday, June 23, 2016 (12:30 – 1:45 p.m. CDT)
Online registration: Click here.

toastYou’re toast!  And if you still aren’t taking this issue seriously, let me tell a little story from the recent Disability Management Employer Coalition compliance conference held in April.  One speaker was Sharon Rennert, Senior Attorney Advisor on ADA policy for the EEOC.  An attendee asked Ms. Rennert a question about his company’s maximum leave policy that was based on exhaustion of 12 weeks of FMLA leave.  An employee needed only a few additional days of leave but the company did not want to make an exception to its policy.  Ms. Rennert stopped his question by saying, “You’re toast!”  The poor guy tried to continue his question and to justify his company’s policy but again got the response from Ms. Rennert, “You’re toast!”  Now, she wasn’t being rude, but was simply trying to make it ever-so-clear that an employer’s application of an automatic cap on leave without engaging in an individualized assessment of the employee’s situation may violate the ADA, because it does not allow for consideration of more leave or some other accommodation(s) to enable the employee to perform his essential functions.  So, attend and learn from Jeff’s webinar, and don’t be toast!

MATRIX CAN HELP! Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, manage the interactive process, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at 1-800-866-2301 to learn more about these services.