Thanks again to those who attended my June 23 webinar with EEOC Commissioner Chai Feldblum on the topic of “leave” as an ADA reasonable accommodation in light of the EEOC’s new technical resource issued on this topic in early May 2016. If you missed the program, you can access the webinar and materials here.

This is the second part of a two-part blog post in which I recap the issues Commissioner Feldblum and I discussed during the webinar. Yesterday, I provided guidance on how an employer should address an employee’s requests for multiple extensions of continuous leave, which we covered at some length during the webinar.

During the webinar, we also covered how an employer should address an employee’s intermittent and unpredictable absences after FMLA leave has exhausted. I address these issues below.

Intermittent, Unpredictable Leave After FMLA Ends

As I noted for Commissioner Feldblum, one of the most frustrating issues for employers in this area is an employee’s continued sporadic, unpredictable absences (after FMLA has ended) that wreak havoc on an employer’s operations. Employers rightfully complain that an employee’s repeated intermittent absences after FMLA ends effectively transform a full-time position into a part-time position, giving the employee just enough time to gain back FMLA hours only to start the cycle again.

Keep in mind that EEOC’s take the position that employers are obligated to provide leave in these situations unless it can show the continued absence constitutes an undue hardship. (See yesterday’s blog post for more analysis on this point.)

Because intermittent leave is irregular and unpredictable, however, an undue hardship defense will be easier to advance in these situations. Here, you are more likely to show that these continued intermittent absences adversely impact your operations and the ability to serve your customers/clients.

To illustrate, take John, our hypothetical employee who has been absent for depression and fibromyalgia. After exhausting FMLA leave, he continues to take, on average, one day off per week both for medical and undisclosed reasons. John effectively has turned the full-time position into a part-time endeavor, which allows you to make a case for undue hardship:

  • Temporary employees filling in for John are not as effective in the role and are prone to more errors
  • You are incurring overtime costs for other employees who have to cover for John
  • Lower quality of work from replacement(s) and not completed in a timely manner
  • You are taking on additional costs because John cannot attend to his full-time duties
  • Vendors are complaining about late or incorrect payments because your accounting department can’t keep up
  • Projects are being pushed off during John’s absence
  • Management employees are being pulled away from their work to attend to John’s duties
  • Employee morale results in demonstrably lower productivity

The EEOC’s resource document backs up our ability to establish undue hardship in these situations, as it makes clear that we can consider the following factors in establishing undue hardship:

  • The amount and/or length of leave required (John’s sporadic absences have continued for several months after FMLA had exhausted)
  • The frequency of the leave (John averages one day off each week)
  • Whether there is any flexibility with respect to the days on which leave is taken (his leave is completely unforeseeable)
  • Whether the need for intermittent leave on specific dates is predictable or unpredictable (if John’s absences are not woefully unpredictable, I am not sure what is!)

As I addressed in yesterday’s blog post, employers can obtain information from the employee’s physician regarding the continued need for leave, asking questions to help determine the undue hardship factors identified above. In intermittent leave situations, it also is critical for the employer to continue to engage in the interactive process with the employee so that it can best determine whether any assistance can be provided to help them improve their attendance and return to work.

In addition to the thorny topic above, we also covered the following topics during the webinar:

Indefinite Leave

Commissioner Feldblum confirmed that “indefinite leave” is not a reasonable accommodation, echoing the resource document’s guidance in this area:

Indefinite leave – meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship, and so it does not have to be provided as a reasonable accommodation.

100% Healed Policies

All too many employers require that employees be “100% healed” or “without restrictions” before returning to work. According to EEOC, this approach violates the ADA. We reminded attendees tore-evaluate these practices and implement policies that provide for individualized assessments of an employee’s ability to return to work with or without a reasonable accommodation under the ADA.

Reassignment

Although we did not have much time to cover the topic of reassignment as a reasonable accommodation, the EEOC makes clear — and Commissioner Feldblum reiterated — that employers have an obligation under the ADA to reassign an employee if his disability “prevents the employee from performing one or more essential functions of the current job, even with a reasonable accommodation, or because any accommodation in the current job would result in undue hardship.” Deemed by the courts as the “accommodation of last resort,” reassignment still must be considered if all else fails.

Finally . . . Where Do You Find All These EEOC Documents?

Throughout our session, Commissioner Feldblum and I referred to the new EEOC resource in addition to other guidance provided by EEOC over the years on ADA reasonable accommodation. Here are the links to these resources: