Based on recent 2014 reports, the EEOC is continuing its trend of pursuing lawsuits against large employers who have allegedly violated the Americans with Disabilities Act (ADA) by failing to provide employees with reasonable accommodations in the form of leave. The common thread in most of the cases is the employer’s unwillingness to be flexible.
For example, the EEOC recently settled a lawsuit with an employer who terminated a nurse assistant with a back injury because she failed to submit her request for medical leave on a particular company-specific form, though the nurse assistant submitted a letter from her doctor in support of her request. In another lawsuit, after being diagnosed with breast cancer, an employee informed her supervisor of her diagnosis and treatment plan, including the need for leave to undergo surgery to treat her breast cancer. The EEOC said that the employee submitted a doctor’s note to her supervisor, stating that she was required to take leave for several weeks due to her medical condition. However, shortly after her leave request, she was informed that her request for medical leave had been denied and that she was being terminated for failing to report to work. Both of these cases have been recently been settled for substantial sums.
The ADA applies to employers with 15 or more employees and therefore covers almost all manufacturers. The ADA prohibits disability discrimination and is designed to create a level playing field for dis abled employees and applicants. A 2009 amendment to the ADA broadened the standard for determining whether an individual is considered “disabled” under the law – significantly expanding the number of individuals covered.
The EEOC considers an unpaid leave of absence to be presumptively reasonable, even in instances where the employer is too small to be covered by the Family Medical Leave Act (FMLA) or the employee’s tenure is too short. Employers need to be practical and tread very lightly around these issues. The EEOC is aggressively pursuing businesses that enforce leave of absence policies to the detriment of disabled employees by denying extended unpaid leaves. The EEOC Regulations and Guidance do not set a specific amount of time relative to the use of leave as a reasonable accommodation. As such, the obligation to provide leave as an accommodation is one of the most complex issues employers are likely to face.
Here are some takeaways:
- Review and revise leave policies, especially policy provisions that may reference maximum leave periods for termination of employment.
- Designate and train staff managing leave requests to understand the interactive process and how to request specific employee job-related, fitness for duty information, including a definitive return to work date. The EEOC website contains a wealth of information, including recently updated enforcement guidance on cancer, epilepsy and diabetes.
- All employee communications regarding leave and/or other reasonable accommodations should be documented and maintained in the employee’s medical file. Checklists may be developed to keep track of sent and returned documentation (i.e. FMLA certification forms, ADA reasonable accommodation leave requests, return to work certifications, etc.) HR staff responsible for numerous employees should consider such checklists so they can organize and access information more easily when questions arise about the status of accommodations.