EEOC sends employers strong signals on medical leave

by Troy D. Thompson

Over the last several months, the Equal Employment Opportunity Commission (EEOC) has filed a significant number of lawsuits alleging disability discrimination under the Americans with Disabilities Act (ADA) against employers across the country. The cases are instructive because they highlight the EEOC’s current enforcement policies, identify common areas of risk under the ADA, and confirm why HR personnel generally like to take a deliberate approach when dealing with accommodation issues.

Leave of absence issues
Title I of the ADA requires covered employers to provide reasonable accommodations to qualified individuals with a disability except when an accommodation would cause an undue hardship. A temporary leave of absence can be a reasonable accommodation. However, undue hardships can quickly arise when short-staffed employers are required to meet business demands, customer expectations, and contractual obligations. In many cases, a leave that starts out as a one-week absence turns into a three-month leave with no end in sight. That kind of extended leave presents special challenges for employers.

The EEOC’s lawsuits can be disheartening to employers that work hard to be fair and accommodate employees’ disabilities. At the same time, some employers do not fully understand the lengths to which the EEOC expects them to go in terms of the reasonable accommodation process. The recent lawsuits shed light on those expectations. A number of the lawsuits involve maximum leave policies, full-duty release requirements, unsubstantiated safety concerns, or unsubstantiated undue hardship issues. Employers can minimize their liability by understanding the issues and addressing them when they arise.

Maximum leave policies
The EEOC views maximum or inflexible leave policies as the equivalent of a refusal to explore or provide reasonable accommodations in violation of the ADA. Such policies frequently state that if an employee is unable to return to work following a continuous leave of absence of a specific duration (e.g., six months to one year), then the employment relationship will be terminated. The EEOC continues to challenge the legality of these policies.

If you have a maximum or inflexible leave policy, contact legal counsel to evaluate the risk in keeping it. The EEOC expects employers to examine each employee’s needs on a case-by-case basis. Additionally, the duty to accommodate is an ongoing obligation that does not automatically end on a date set forth in a policy.

Full-duty release requirements and safety issues
The EEOC objects to employer policies that require employees to be released with no medical restrictions before returning to work. The agency views such policies as evidence of an employer’s refusal to engage in the interactive process to explore reasonable accommodations.

The EEOC is also challenging employers’ decisions to place employees on involuntary medical leaves because of generalized safety concerns. The ADA permits employers to require that employees not pose a direct threat to the health and safety of themselves or others in the workplace. However, in this context, “direct threat” means a significant risk of substantial harm. An employer cannot meet its burden of showing that a direct threat exists based on speculation and conjecture about potential safety issues. When safety concerns arise, it may be appropriate to contact an employee’s healthcare provider or seek expert medical advice.

Undue hardship issues
Finally, the lawsuits show that the EEOC will not simply take your word that an accommodation will cause an undue hardship. Generalized conclusions are insufficient. Instead, an undue hardship must be based on an individualized assessment of current circumstances that shows that a specific accommodation would cause significant difficulty or expense. Such determinations should be based on several factors, including:

• The nature and cost of the accommodation;
• The financial resources of the facility making the accommodation;
• The number of workers employed at the facility;
• The effect the accommodation would have on the facility’s resources;
• The overall financial resources, number of employees, and size, types, and locations of the employer’s facilities;
• The type of operation of the employer, including the structure and functions of the workforce, geographic separateness, and the administrative or fiscal relationship of the facility to the employer; and
• The impact the accommodation would have on the operation of the facility.

If an employer determines that a reasonable accommodation will cause an undue hardship but another accommodation will be effective and will not cause an undue hardship, then it must provide the alternative accommodation. According to the EEOC, an employer cannot claim that an undue hardship exists based on employees’ prejudices toward an individual’s disability or employee morale issues.

Bottom line
Medical leaves are one of the most difficult accommodation issues for employers to deal with. There is frequently a convergence of federal and state laws, including the ADA, the Family and Medical Leave Act (FMLA), comparable state laws, and state worker’s compensation laws.

This is definitely an area in which you should seek legal counsel on the front end. An ounce of prevention is worth a pound of cure.

Troy D. Thompson is a partner with Axley Brynelson, LLP, practicing in the firm’s Madison, Wisconsin, office. He may be contacted tthompson@axley.com.