Recently there have been a number of headlines relating to ADA and ADAAA violations. It has certainly been enough to make an employer nervous, and hopefully has prompted some internal review of your accommodations and leave policies.
In the past I’ve blogged about the importance of returning people with disabilities to work. Also how employers need to stop crossing days off the calendar until a person can be terminated, and instead start finding an alternate position for this employee. A working person is always a healthier person, even if they aren’t immediately occupying their original position. All of this still rings true, however, sometimes the accommodation may simply need to be a leave from work.
A recent EEOC press release notes that employers have paid more than $34 million to resolve lawsuits brought by the EEOC concerning leave and attendance policies.Recently Princeton Healthcare System, which operates an inpatient hospital system as well as several outpatient facilities, settled a $1.35 million dollar lawsuit brought on by the EEOC for having an inflexible leave policy. Their previous policy only allowed for the 12 weeks of leave protected under the FMLA. They will now be adhering to a more interactive policy that might provide an employee with additional leave time beyond these protections.
Another significant suit brought on by the EEOC required that Interstate Distributor Company, a national trucking company, pay out $4.85 million for terminating employees after their 12 weeks of FMLA leave expired, instead of reviewing their potential needs for additional leave under the ADA.
The most noteworthy suit ever brought on by the EEOC required that Verizon pay $20 million, representing the largest single suit in EEOC history. Again due to an inflexible leave policy.
All of these suits were prompted because the disability of the employee was not taken in to consideration, only the leave entitlement provided by the company or the Family and Medical Leave Act. Once this time period exhausted, so did the employment of the disabled employee.
These numbers certainly give reason for concern, but adhering to the ADA and ADAAA in relation to leave accommodations doesn’t need to be difficult.
- Start the interactive process before the employee expires their FMLA. My recommendation is about 3 weeks before.
- Request medical information that supports the need for extended leave or any other accommodations.
- Discuss with the employee any workplace accommodations that might assist them in returning to work. These could include alternative positions. Remember that they should not be required to compete for those positions with another employee.
- If no workplace accommodations can be made that are acceptable to the employee and the employer, that accommodation just might be leave.
- Documentation is your friend! Be precise and thorough.
But you’re not responsible for everything!
Because the interactive process imposes mutual obligations on employers and employees, an employer cannot be liable for failure to accommodate if a breakdown in that process is attributable to the employee. Courts have consistently attributed the breakdown in the interactive process to the employee when:
- The employee refuses to allow the employer to discuss the employee’s alleged disability with the employee’s doctor after attempts to accommodate the employee are unsuccessful;
- The employee did not respond to the employer’s request for information about the employee’s abilities and the nature and extent of the restrictions; or
- The employee uncompromisingly insists on a single accommodation that is unreasonable.
Another helpful process to implement should be an interactive termination process within your organization. Supervisors, managers, and HR reps should all be working together more to review all documentation, accommodations, and conversations. Make sure your decisions are unanimous and concrete, although it might not keep the EEOC away, you just might be vindicated in your decisions.