Last Thursday, I had the pleasure of conducting a 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. In addition to covering information contained in the EEOC’s new resource document, we also identified some practical approaches in determining whether and how much leave employers are obligated to provide when it comes to the ADA.
Since we covered so much information on leave as a reasonable accommodation, for the first time ever (I think), I am splitting this blog post into two parts:
- Today, I will recap our guidance in the webinar on how an employer should address an employee’s requests for multiple extensions of continuous leave (Part I).
- Tomorrow, I will recap our guidance on how an employer should address an employee’s intermittent absences and unreliable attendance after FMLA leave has exhausted. I’ll also cover issues such as indefinite leave, 100% healed policies and automatic termination policies (Part II).
Here are my takeaways:
Undue Hardship: Learn it, Live it, Love it
As confirmed in the EEOC’s new resource and by Commissioner Feldblum, if an employee requires leave from work because of a disability, the employer must provide leave as a reasonable accommodation unless the employer can show that the leave of absence creates an undue hardship. EEOC appears to presume that any request for leave — no matter the length — is an effective accommodation. Before we even get to the undue hardship analysis, however, an employee should be required to establish that his request for additional leave is effective in helping him return to work in the near future. If it’s not effective, then why do through the undue hardship analysis, right?
But let’s put that argument aside for the moment. At this point, it should be clear to us that neither the EEOC nor any court will create a bright line rule identifying how many extensions of leave we are required to provide an employee prior to termination. Therefore, I suggest that employers move away from the focus on the number of extensions they are required to provide. There is no answer. Rather, employers must focus on engaging the employee in a robust interactive process and examining how the employee’s continued absence is creating a hardship on its operations.
Let’s apply this concept to a scenario you likely have faced: As I explained during the webinar, your employee, John, suffers from depression and fibromyalgia. He exhausts FMLA leave, at which point he requests three consecutive extensions of leave lasting about one month each. I pitched to Commissioner Feldblum a process in which the employer would provide the employee up to three extensions of leave, at which point it would either fill his position or terminate employment. Of course, the Commissioner could not endorse a particular method, nor could I ask her to speak on behalf of the EEOC, but she found my recommended process below to be reasonable.
Before John’s FMLA leave is exhausted, we send the employee our “Stevie Wonder” letter (see slide 17 of the PPT and my explanation during the webinar to understand the connection) reminding the employee that FMLA leave is ending, that you expect him to return to work, and inviting him to contact you if he needs assistance to return to work or if he cannot return to work. If the employee requests additional leave beyond FMLA, then we have the right to obtain information from his physician about the medical condition and need for additional leave. These questions are spelled out in the EEOC’s resource document and in previous EEOC guidance. As made clear in the EEOC’s resource document, we can require the physician to answer the following questions:
- What are the basic facts regarding the impairment? (No diagnosis!)
- What are the activities that the impairment limits (and the extent to which)?
- How does impairment affect the employee’s ability to perform essential job functions and what job functions?
- Can the doctor identify any accommodations that would help the employee perform the essential job functions?
- If leave is necessary, what is the expected date upon which the employee can perform essential job functions?
When the employee makes the second request for leave, we use correspondence at this phase to outline how his absence is impacting our operations. Here, we use the undue hardship factors at slides 22 and 23 of my webinar PPT to provide John specifics on how this amounts to a hardship. For instance, can we show:
- Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
- Lower quality and less accountability for quality
- Lost sales
- Less responsive client service & increased client dissatisfaction
- Deferred projects
- Increased burden on management staff required to find replacement workers, or readjust workflow or readjust priorities in light of absent employees
- Increased stress on overburdened co-workers
- Lower morale that results in demonstrably lower productivity (Be careful! Employee morale should never be the sole reason for undue hardship, and EEOC will not buy this excuse standing on its own.)
When do we conduct this undue hardship analysis? As a general matter, employers typically conduct the undue hardship analysis only after the employee has exhausted FMLA leave and is requesting additional leave as an ADA accommodation. That’s often too late. To her credit, Commissioner Feldblum noted that employers have the flexibility during an employee’s FMLA leave to assess whether the absence constitutes an undue hardship. Although FMLA would protect that employee’s job for up to 12 weeks, the employer now has an argument that an undue hardship — if properly supported, of course — occurs shortly after FMLA is exhausted. Since the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship doesn’t precisely address the timing of when an employer should assess undue hardship, Commissioner Feldblum’s comments help clarify the issue.
Let me be clear on this critical step, since it’s so important: Assessing and documenting how an employee’s absence creates an undue hardship is critical, so I recommend that you work with your employment counsel to identify a compliant ADA process in which you lawfully consider the undue hardship criteria and apply them to an employee’s specific situation.
Because you have identified the month before how John’s continued absence is impacting your operations, you now are in a good position to communicate that a third extension of his leave constitutes an undue hardship on your operations. Although you must remain flexible to consider changed circumstances and other accommodations John might need to return to work, it is reasonable at this stage to inform John that you will need to fill his position (and/or terminate his employment) if he is unable to return to work after another extension.
At this stage, you may also consider requesting updated information from John’s physician about his ability to return to work. In this correspondence, you can pose the following questions
- What amount of additional leave needed?
- Why is additional leave necessary?
- Why did the physician’s initial estimate prove inaccurate?
Insights for Employers
So, you might ask, am I endorsing a “three strikes and your out” approach? Not exactly, but pretty darn close. Remember that the interactive process is not rigid — it must remain flexible so you can conduct an individualized assessment of what assistance may be necessary to help the employee return to work. However, if you engage your employee in a meaningful interactive discussion early on in the leave process and you document how the employee’s leave is creating a hardship on your operations, you are in the best position to take action when the employee asks for that third extension request.
But what if employee continues to mess with our operations by missing work intermittently and without notice after FMLA ends? Or what if the employee’s physician cannot provide an estimate as to when the employee can return to work? Can we establish an automatic termination date? May we require our employee to return to work with no restrictions? And how does reassignment fit into all of this?