ADA Alert:  The EEOC is Alive and Kicking

Posted on: October 22, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

October 22, 2019

 

And sadly, so are disability and pregnancy discrimination. 

I receive press releases from the Equal Employment Opportunity Commission several times each week.  Most of them trumpet new lawsuits filed by the agency or settlements reached with employers it previously sued.  Every year there are some whoppers in terms of settlement dollars. There are also lots of smaller-dollar settlements that don’t make the non-EEOC news banners but have a big impact on the employer nonetheless.

So I got to wondering – how do the numbers stack up with regard to EEOC lawsuits relating to disability and pregnancy discrimination?  I took an unscientific count from the EEOC’s Newsroom  (ticking off the numbers on a piece of scratch paper).  Here’s what I found through October 20 of this year: 

  • The EEOC issued over 250 press releases relating to lawsuits it has filed or settled so far in 2019.
  • 113 (approx 45%) of these were lawsuits alleging disability or pregnancy discrimination and failure
    to accommodate (93 disability-related, 16 pregnancy-related, and 4 involving both).
  • Settlements ranged from $16,000 to $2,250,000 in damages awarded to the employees.
  • The top of the chart was a $5.2 million jury verdict in an EEOC lawsuit alleging failure to
    accommodate a cart pusher at a Walmart store. More on that below!

In addition to press releases throughout the year, the EEOC publishes its official tally of charge and litigation statistics annually, which you can review here.

Who is getting sued by the EEOC, and for what? 

Pretty much everyone, and for everything disability-related. 

  • The employers who are subjects of these press releases include hospitals and other medical providers,
    staffing agencies, retailers, grocery chains, entertainment and hospitality companies, manufacturers, fast
    food franchisees, service providers at correctional institutions, telecommunications and trucking companies,
    and on and on. (Lesson: Don’t assume your segment is “under the radar.”)  
  • These employers are getting the EEOC’s attention due to hiring practices, improper medical inquiries,
    failure to accommodate in all shapes and sizes, terminations, more terminations, inflexible leave policies, and
    disability harassment. Did I mention terminations?
  • The disabilities at issue include both mental and physical, although the physical disabilities seem to dominate
    this year: Hearing impairment, bad backs, Tourette syndrome, cancer, and so on.

Now I have to acknowledge that these are EEOC press releases – the agency selects the new or settled cases they want to publicize.  There are also EEOC lawsuits that get dismissed by the court or are adjudicated in favor of the employer.  Still, there are lessons to be learned from the cases the EEOC wants to share with the employer world. 

The ones that speak to me. 

Of the 113 news releases related to disability and/or pregnancy discrimination, here are a few that I found to be noteworthy: 

  • Changing policy. One resort and spa employer settled a lawsuit based on its refusal to allow a
    pregnant employee to wear open-toed shoes (not a safety issue) and to sit while working at the
    reception desk.  I ask you, was that worth it?
  • Inflexible leave policies continue to trip up employers – much to my surprise, as this has been
    an EEOC focus for years. See our blog post on the topic here.   In 2019 so far, at least 4 employers
    settled EEOC disability lawsuits based on the employer’s practice of terminating employees when
    the employees exhausted their FMLA or company medical leave rather than considering ADA
    accommodations (extended leave or otherwise).  These 4 settlements range from $175,000
    to $950,000.
  • Several cases involved failure to accommodate hearing impairments.  Employers need to avoid
    making rash decisions based on stereotypes about the hearing-impaired (remember
    the Case of the Deaf Lifeguard?) or any other disability, for that matter. Rather, consider the
    hearing impaired individual’s capabilities and if necessary, discuss special instructional, training,
    or communication methods as a reasonable accommodation.
  • Ending an existing accommodation. Finally, we must look at that $5.2 million jury verdict against
    Walmart.  This case involved a cart pusher, Paul Reina, whose job consisted primarily of clearing
    the parking lot of shopping carts.  Reina is deaf and has developmental, visual, and intellectual
    impairments.  Reina had worked for Walmart in this capacity from 1998 to 2015, always with the
    assistance of a job coach arranged by Reina’s family and paid for through a Medicaid program.
    In 2015 a new manager was assigned to the store where Reina worked.  A few days later Reina
    was put on administrative leave and never allowed to return to work.  To be fair, Walmart gave
    several reasons it felt Reina should no longer work as a cart pusher, including the argument that
    it was actually the job coach, not Reina, who was performing the job duties.  Nonetheless,
    Walmart discarded an accommodation that had been in place for 17 years. The jury found that
    this violated the ADA and awarded Reina $200,000 in actual damages and $5 million in
    punitive damages.

The consequences beyond dollars. 

An EEOC lawsuit imposes a substantial financial burden even if the employer wins the case, such as the costs of attorneys’ fees, document production, depositions, and other defense tasks. But there are also significant consequences beyond just the monetary issues. Consider also the time spent by your employees, management, and Human Resources personnel to prepare for and defend the lawsuit and the ensuing disruption of your business operations.

In addition, when the EEOC settles a case, it demands other non-monetary relief such as years of oversight by the agency, hiring an ADA consultant, revising ADA policies, posting notice of the settlement in the workplace, and agency-mandated layers of training for employees and management.

Pings for Employers. 

What should you do so that your company doesn’t appear in the EEOC’s 2020 press releases? How about:

  • Train your employees on the ADA and accommodations – why wait for the EEOC or a
    court to tell you to do it? If training heads off even one ADA misstep and EEOC lawsuit,
    it will have paid for itself.
  • Review your leave policies to ensure they don’t violate the ADA by imposing an inflexible
    limit to leave durations or requiring employees to be 100% healed before returning to work.
  • Take the interactive process to heart. Don’t make employment decisions based on your
    belief or a stereotype of what someone with a disability can or can’t do – discuss it with
    the employee and, if appropriate, get relevant medical support.
  • Be ready to change nonessential company rules and procedures as an accommodation.
    Arguments like “we’ve always done it that way” or “then everyone will want the same”
    just don’t win the day.
  • Use available resources to help you understand an employee’s impairment and capabilities.
    The Job Accommodation Network  has a multitude of articles on various impairments and
    possible accommodations, and the staff is available for discussion by telephone.  
  • Consider other resources specific to the employee’s disability. There are multiple websites
    for virtually every type of impairment that will help educate you about the employee’s
    situation.  But remember – again – to avoid those stereotypes and make your determinations
    on the basis of the employee’s specific capabilities and limitations.

 

MATRIX CAN HELP! Matrix’s ADA Advantage® leave management system and our dedicated ADA accommodation specialists help employers maneuver through the accommodation process – including spotting noncompliant leave policies during implementation of our servicesWe 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.  For assistance please contact your Matrix or Reliance Standard account manager or send an email to ping@matrixcos.com.

Matrix Compliance Experts Take the Stage!

Posted on: December 11, 2018 0

Matrix’s Gail Cohen Co-Presents with EEOC Counsel at DMEC Webinar

By Gail Cohen, Director, Employment Law/Compliance

I had the privilege of presenting last week with Chris Kuczynski, Assistant Legal Counsel of the EEOC in Washington D.C. on “EEOC Insights into What Employers Still Get Wrong about the ADA.” The presentation was a webinar through the Disability Management Employer Coalition (“DMEC”).

In putting our materials together, Chris and I identified four ADA issues
that seem to be particularly challenging to employers. For those who
were unable to attend, here are the four topics we covered and key
best practice pointers we discussed:

  • Telework as a Reasonable Accommodation: Courts have often
    sided with employers who deny telework as an accommodation on
    the basis that the job requires teamwork and/or face-to-face
    collaboration with clients and/or colleagues. But beware! The
    EEOC will challenge employers who cannot demonstrate that
    this is truly an essential job function.  As a result, it is critical
    for employers to conduct a job analysis and confirm that the
    job description accurately captures the essential job functions as performed by employees. And, this job description
    should accompany any ADA-compliant medical inquiry the employer makes to the employee’s healthcare provider
    to understand whether telecommuting will assist the employee in performing his or her job functions, why it is
    necessitated by the employee’s condition, and whether the provider can suggest alternative accommodations the
    employer can offer.
  • Qualification Standards v. Essential Job Functions: Chris explained a distinction employers often get wrong –
    confusing qualification standards (requirements intended to predict whether someone can perform the job,
    such as having a college degree or a commercial driver’s license) with essential functions (what the person actually
    does on the job – lifting packages, selling things). The EEOC will challenge employers if a particular
    qualification standard has the effect of screening out prospective employees in a discriminatory fashion.
    Employers must be able to demonstrate that a particular qualification is both job-related and consistent with
    business necessity. This is sometimes unsuccessful, as borne out by a case the EEOC brought on
    behalf of a postal worker whose condition limited her to lifting 10 pounds and who challenged a 70-pound
    lifting standard that the employer was unable to demonstrate was job-related and consistent with business
    necessity. Indeed, the EEOC was able to demonstrate by talking to employees who performed the job that
    they never lifted more than 35 pounds.
  • Leave as Accommodation: The EEOC and courts agree that, in general, leave of absence is a reasonable
    accommodation. But employers: Don’t just grant leave because the employee asks for it. The EEOC agrees that
    it is entirely appropriate for an employer to conduct ADA-compliant medical inquiries when an employee
    requests leave as an ADA accommodation. Such inquiries will assist the employer to ascertain why the
    employee’s condition requires leave (continuous or intermittent), how much leave is necessitated,
    whether such leave will enable the employee to return to work and perform the essential functions of his
    or her job, with or without accommodation(s), and to explore alternatives to leave that may be effective
    for the employee to report to work.
  • Reassignment: Following an ADA leave of absence an employer must try to reinstate the employee. But, if the
    employee cannot be accommodated in his or her current role, the accommodation of last resort must be
    considered – reassignment. To the EEOC, this means the employer and employee working together to
    identify positions open now or in the foreseeable future for which the employee is qualified and which are
    substantially equivalent to his or her current role. The employer cannot simply sit back and let the employee
    search and apply for open positions.
  • BONUS OBSERVATION: During the Q & A following our presentation, an employer asked what can be done
    if an employee refuses to participate in the interactive process. Chris explained that an employer who has
    told the employee about the ADA process upfront, including the need for both parties to engage in good
    faith in an interactive discussion, and who has documented its good faith efforts to do so will likely
    prevail in an EEOC charge or other proceeding alleging failure to accommodate. The burden of proof
    in such matters is on the party who is responsible for a breakdown in the interactive process and,
    if an employee is that party, the employer is excused from any obligation to provide accommodation(s)
    to that employee.

DMEC members can listen to a recording of the presentation and obtain a copy of our presentation materials through these links:

  • Webinar recording: (Name and email are required to be directed into the recording)

 

Meanwhile, Marti is presenting too!

By Marti Cardi, Vice President, Product Compliance

While Gail was putting the finishing touches on her DMEC presentation with the EEOC, I had the opportunity to present a session at the National Workers’ Compensation and Disability Conference on December 5. The topic was “Return to Work without Violating FMLA, ADA and Workers’ Compensation Laws.” I don’t claim to be a workers’ comp expert so I partnered with Rich Montarbo, a great workers’ comp attorney from that challenging state of California. We discussed the many employer options as alternatives to leave of absence, or to shorten a leave and get employees back to work safely and legally. Our sister company Safety National posted a blog about the presentation so rather than rewrite the material, I will link you to that story here.

 

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation requests and making the medical inquiries to which you are entitled to understand what an employee needs and how you can help. You always retain the final decision whether and how to accommodate, but Matrix manages the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialists is at the ready with practical advice and expert guidance.  To learn more, ping us at ping@matrixcos.com.

The Essence of Parental Leaves – Treating Fathers Differently Costs Estée Lauder $1.1 Million and Much More

Posted on: July 26, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

Perfume and cosmetics giant Estée Lauder has agreed to pay $1.1 million to a class of male employees who received less bonding leave and less return to work job flexibility than their female counterparts.  Under its prior policy, men received just 2 weeks of parental leave to bond with a new child.  Women received 6 weeks after their medical leave ended and flexible return-to-work benefits upon expiration of child bonding leave, such as temporary modified work schedules, to ease the transition back to work.

The EEOC filed suit against Estée Lauder in August 2017.  On July 17, 2018, the court entered a consent decree resolving the case. In addition to the $1.1 million payment to the class of male employees, the consent decree imposes other requirements on Estée Lauder. The company must:

  • Administer parental leave and related return-to-work benefits in a manner that ensures equal benefits
    for male and female employees
  • Provide training on unlawful sex discrimination
  • Allow monitoring by the EEOC

Estée Lauder met the requirement of equal benefits during the course of the lawsuit when it voluntarily (with the EEOC watching over its shoulder) implemented a revised parental leave policy that provides all eligible employees, regardless of gender or care­giver status, the same 20 weeks of paid leave for child bonding and the same 6-week flexibility period upon returning to work. For birth mothers, these paid parental leave benefits begin after any period of medical leave occasioned by childbirth.

These are common terms imposed by the EEOC when it sues an employer and obtains a consent decree – a judgment agreed to by the employer to resolve the EEOC’s lawsuit.  Other common terms include:

  • Posting the consent decree on employee bulletin boards;
  • Hiring a nondiscrimination consultant; and
  • Reporting to the EEOC on all complaints received by the employer for a number of years. 

As you can see, the payment by the employer pursuant to a consent decree is often just the tip of the iceberg in terms of total amount of internal costs, management time, and distraction caused by an EEOC investigation and lawsuit.

Observation:  Many employers attract the EEOC’s attention by discriminating against pregnant employees and mothers – termination, forced leave, failure to promote, etc.  Ironically, this lawsuit arises from an employer treating pregnant employees more favorably than men.  I’m sure Estée Lauder is feeling the adage, no good deed goes unpunished!

Pings for Employers

  • Check your policies. Leaves related to having a new child fall into 2 categories:  medical leave for
    the birth mother, and bonding leave for all parents.
  • Any leave provided only to the birth mother must relate to her medical condition. Common “disability”
    leave after birth is 6 weeks for a vaginal birth, 8 weeks for a C-section.  If your plan noticeably exceeds
    these numbers you are at risk of a challenge that the leave is not related to the birth mother’s health condition
    and is discriminatory against non-birth parents.
  • Leave for bonding must be equal for all parents – birth mothers and non-birth parents (fathers and second
    mothers). Same for other new-child related benefits, such as the flexible return to work options offered
    by Estée Lauder.
  • To be competitive, parental/bonding leave should also be available to adoptive and foster parents. Some state
    laws require this.
  • To see what other employers are offering as voluntary paid maternity, parental, and caregiver leave benefits,
    check out this resource from the National Partnership for Women and Families:
    Leading on Leave: Companies With New or Expanded Paid Leave Policies (2015-2018).
  • For more detailed guidance – at least from the EEOC’s perspective – you can review their
    Enforcement Guidance on Pregnancy Discrimination and Related Issues.

Matrix Can Help.  Matrix offers comprehensive leave management services, including administration of company leave policies such as maternity and parental leaves (paid and unpaid).  For more information contact your account manager or your sales representative, or send an email to ping@matrixcos.com.

Matrix’s Gail Cohen on ADA Panel at EEOC Regional Meeting

Posted on: June 25, 2018 0

Many of you know my colleague, Gail Cohen, an attorney who works closely with me at Matrix and assists our clients, consultants, and others with ADA and leave of absence issues.  Gail recently participated in a panel presentation on the ADA – specifically accommodations and the interactive process – at an EEOC-hosted conference.  Kudos to Gail for being selected to join in presenting on this important topic with the law’s enforcement agency!  Here is a post from Gail, sharing her presentation and what she learned at the conference. 

 —Marti Cardi – Vice President, Product Compliance

On Thursday, June 21, I had the privilege to serve on a panel at the EEOC Regional Meeting in Phoenix.  My topic was “Reasonable Accommodation – What Works.”  Here  is a link to my presentation materials.  Take a look for a primer on reasonable accommodation and the interactive process – these are the kinds of issues we at Matrix help our clients with on a daily basis.

At the meeting the EEOC addressed some of its current priorities.  Here are some key takeaways from the EEOC that I think will be of interest to our readers:

  • Pregnancy discrimination and accommodations. In June 2015 the EEOC issued its
    Guidance on Pregnancy and Related IssuesA review of the cases filed by the EEOC since then show
    that this continues to be a priority.  Several states have followed suit by passing mandatory pregnancy
    accommodation and nondiscrimination laws.  Click
    here  for Matrix’s latest blog on a new state pregnancy law.
  • ADA compliance. The EEOC’s ADA compliance priority includes ensuring that employers are engaging
    in the interactive process and otherwise complying with their obligations to employees who request
    or have a known need for a reasonable accommodation in order to perform their essential job functions.
  • Medical inquiries. In addition, the EEOC emphasized pre-employment physicals and medical inquiries,
    as well as maintaining the confidentiality of employee medical information. (Did you know that the
    failure to maintain confidentiality is an independent violation of the ADA?)
  • The Importance of mentoring. The EEOC cited a study indicating that having a formal mentorship
    program at your company is one of the best ways to prevent/reduce the occurrence of discrimination.
  • Staffing companies. Another EEOC Priority is a focus on staffing companies, who the EEOC believes
    do not understand their obligations to comply with the laws they enforce, particularly in connection
    with their use of pre-employment testing.  Employers need to scrutinize contracts with staffing and
    temp agencies closely to ensure that legal and compliance responsibilities properly lie with each party.

 

Matrix can help!  Medical inquiries can be tricky under the ADA.  So can knowing how to deal with a challenging accommodation request.  Matrix’s dedicated ADA Specialists, backed up by our compliance and clinical teams, provide top-notch ADA claims management, whether the accommodation request is a simple piece of assistive equipment, multiple workplace adjustments, or a leave of absence.  To learn more, contact your account manager or send us a message at ping@matrixcos.com.

 

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