©2014 Reed Group. Confidential and proprietary information. Do not duplicate or distribute.1 Leave...

©2014 Reed Group. Confidential and proprietary information. Do not duplicate or distribute. 1

Leave as an ADA Accommodation:

When, Why, & How Much?

Presented by Marti CardiChief Compliance Officer, Reed Group, Ltd.


Employer’s Duty of Accommodation – In a Nutshell

• Employer’s duty of accommodation for employee with an impairment:– Find a reasonable accommodation that enables the employee to perform the essential

functions of his/her position

• Types of accommodations:– Modify the work environment (e.g., accessibility, special equipment, sounds/scents)– Modify the employee’s work schedule (e.g., more breaks, later start time, reduced

hours)– Modify/remove some of the nonessential functions of the employee’s position– Leave of absence


Leave of Absence as an ADA Accommodation

•What is different and puzzling about leave as an accommodation?

•Why are we discussing this?• Recent EEOC consent decree cases• Lack of current EEOC guidance

• Intended new guidance pulled by EEOC the day it was to be released (April 2012)• EEOC commissioners indicate nothing coming out soon


EEOC Activities – Focus on Inflexible Leave Policies

• EEOC is investigating companies with inflexible leave of absence policies – termination at a point certain without individualized interactive ADA accommodation process• End of short term disability leave• End of worker’s compensation benefits /

coverage• Inability to return full time / full duty

after medical leave

•Multiple cases resulting in multi-million dollar consent decrees


EEOC Focus on Inflexible Leave Policies

Company Date Amount Policy

Interstate Distributor Co.

Nov 2012 $4.85 million (1) Terminating employees who were not 100% healed and able to return to work full time/full duty at end of medical leave; (2) limiting leave to 12 weeks

Verizon Communications

July 2011 $20 million Failing to make exceptions to “no fault” attendance plans for individuals with disabilities as an ADA accommodation

Supervalu, Inc., Jewel Food Stores, Inc. etc.

January 2011 $3.2 million Terminating employees with disabilities who were not 100% recovered at the end of medical leaves of absence rather than considering return to work with a reasonable ADA accommodation

Sears, Roebuck and Co.

Late 2009 $6.2 million Terminating employees following exhaustion of workers’ compensation leave without engaging in the interactive accommodation process to consider workplace accommodations or leave extension as an accommodation


EEOC Focus on Inflexible Leave Policies

• Employers also agreed to provide equitable relief such as:• Posting notices• Changing policies• Reporting to the EEOC• Providing training to employees

• EEOC has more cases waiting in the wings!


Individual cases pose risks too!

• EEOC v. Maryland Faculty Physicians, Inc. (D.Pa. Feb. 2013):– Employee with Crohn’s Disease took 2 weeks off for medical treatment– Terminated when she asked for one more day – violated the employer’s

attendance policy– 3-year consent decree: $92,500 in monetary relief to individual

employee plus change policies, supervisor training, reporting to EEOC, etc.

• Cuiellette v. City of Los Angeles (Cal. Ct. App. Apr. 22, 2011)– LA police officer injured on the job, assigned to a desk job; no

performance issues– Terminated when he received a 100% disability rating from his prior field

position– $1.5 million verdict against LAPD for failing to engage in interactive

process and provide alternate duty to police officer


ADA Interactive Accommodation Process

• It’s INTERACTIVE – Employer must communicate with employee, and

vice versa

• It’s an ONGOING PROCESS – Not a one-time event Obligation to interact with employee continues if

original accommodation is not effective, or if employee’s / employer’s circumstances change

• It’s INDIVIDUALIZED for each employee Consider employee’s position, impairment,

limitations, personal reactions, etc. – no “one size fits all”


Purpose of Interactive Accommodation Process

• Purpose of the interactive process: • To find a workplace accommodation• That enables the employee with an impairment • To perform the essential functions of his position

• How does leave enable an employee to perform essential functions?

“He’s not even here!”


Leave as an Accommodation – Is Attendance an Essential Function?

• Current EEOC policy: attendance is not an essential function as defined by the ADA because it is not one of the fundamental job duties of the employment position.

• Essential functions are duties to be performed, not when or where they are performed

• Attendance is relevant to job performance if the time during which an essential function is performed is integral to its successful completion


Leave as an Accommodation – Is Attendance an Essential Function?

• Case law: attendance may be an essential function if: The employee works as part of a team The job requires face-to-face interaction with clients and

other employees The employee works with on-site equipment, tools,

documents The position requires specialized training Other factors or functions that cannot be performed

remotely or off-schedule

Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233 (9th Cir. 2012).Breen v. Department of Transportation, 282 F.3d 839 (D.C. Cir. 2002).


Leave of Absence – Performance of Essential Functions???

• How does leave enable an employee to perform essential functions?• Consider what is happening during the leave• Will it enable the employee to return to work sometime?

– Recuperation from injury, illness, surgery, treatment– Physical therapy to regain abilities– Psychological counseling– Reach equilibrium with new medications– Receive training (reading Braille, working with a service animal)– Relieve stress by time away


Scenario 1 – You are the Employer

Alice is a data entry clerk whose job requires working on a computer all day. She has a back problem that causes periodic flare-ups, during which she has difficulty sitting for long periods of time. She has asked for an accommodation and you request medical documentation.

Alice’s doctor says there are two options. Either:

•Give Alice 3 months off to see if the back problem will clear up completely with rest and therapy; or

•Provide her an ergonomic chair with appropriate back support, and allow her to walk around 5 minutes out of every half hour.

Alice wants to take the leave of absence to see if her back issue will resolve. You would rather have her at work as much as possible.

What do you consider? What is your answer to Alice?


Leave as an Accommodation – Choices

•Accommodation does not have to be the one that the employee requests

oEmployer can choose between effective accommodationsoEmployer does not have to grant a leave request if there is an effective on-the-job accommodationoBUT, be wary of depriving the employee of chance to get medical

treatment

•NOTE: If leave request also qualifies under FMLA, employee can take FMLA leave, even if another accommodation would enable the employee to continue working.



ALICE REVISITED

Alice’s two options. Either:

•Give Alice 3 months off to see if the back problem will clear up completely with rest and therapy; or

•Provide her an ergonomic chair with appropriate back support, and allow her to walk around 5 minutes out of every hour.

Alice wants to return to work because she can’t afford the time off. You are concerned that this accommodation will cause disruption to work flow and lost work time.

Now what are your considerations? What is your answer to Alice?


Leave as an Accommodation – Choices

• Can an employer choose leave as an effective accommodation when employee wants an on-the-job accommodation? Concerns:

– Is leave really effective in that case? What purpose does the leave fulfill in enabling the employee to perform the essential functions?

– Be wary of depriving employee of income

• TIP: Give the on-the-job accommodation a try:– Document AND discuss with the employee any performance problems– Follow up with employee if difficulties are observed or reported– Follow up after trial period


Duty of Accommodation – Making it Simple

Use a 3-Step Analysis:

1.Is the workplace modification or adjustment reasonable?

2.Is the workplace modification or adjustment effective?

Note: if the modification or adjustment is not effective, it’s not really an “accommodation”

3.Does the workplace modification or adjustment impose an undue hardship on the employer’s business?

Even if an accommodation is reasonable and effective, the employer doesn’t have to provide that accommodation if it will impose an undue hardship on the employer’s business


Step 1. Accommodation – Reasonableness

What does “reasonable” mean?

•Current EEOC policy: – “A modification or adjustment is "reasonable" if it "seems reasonable

on its face, i.e., ordinarily or in the run of cases;" this means it is "reasonable" if it appears to be "feasible" or "plausible”

EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, (Oct. 17, 2002)

•U.S. Supreme Court:– The modification or adjustment must seem reasonable on its face;

feasible for the employer; a method of accommodation that is reasonable in the ordinary run of cases

US Airways, Inc. v. Barnett, 122 S.Ct. 1516, 1523 (2002)


Leave as an Accommodation – Reasonableness

• General Rule: permitting the use of unpaid leave or accrued paid leave is a reasonable accommodation – An employer does not have to provide paid leave beyond that which is

provided to similarly-situated employees

• Unlimited or indeterminate leave is not a reasonable accommodation– Without an estimated end date, employer is unable to determine

whether the leave is a reasonable accommodation


Leave as an Accommodation – Reasonableness

• An employer does not have to:

– Completely exempt an employee from time and attendance requirements

– Grant open-ended schedules (e.g., the ability to arrive or leave whenever the employee’s disability necessitates)

– Accept irregular, unreliable attendance



Maria has worked for your company for 10 months, packaging the items in customer orders for local deliveries. Her performance review and the company’s success depend on meeting the company’s guarantee of delivery within 4 hours of an order. She has missed work 6 times in the past 3 months, each time calling in just before her shift to say she is dizzy and fatigued, and can’t stand at the packing tables to work.

Maria tells you she has been diagnosed with MS. She requests 30 days off in accordance with your company’s personal time off policy, in order to start some new MS medication. She has been assured by her doctor that the new medication will ease her symptoms significantly and enable her to resume work safely and reliably. Personal time off under the policy is available to employees who have worked for the company for 12 months.

Do you give Maria the leave? Why or why not?



Maria RevisitedNear the end of Maria’s 30-day leave, she tells you that despite her doctor’s assurances, her new medication is not working and she needs another 30 days of leave to try another medication.

Your company’s personal time off policy provides for 2 possible extensions of personal leave of 30 days each, for a total of 90 days.

Do you give Maria a 30-day extension? Why or why not?_____________

Suppose you gave Maria the 30-day extension, and now she comes back with the same issue – medication not working, needs another 30 days to try another new medication.

Do you give Maria another 30-day extension? Why or why not? Does it matter if you are approaching your company’s busiest order time of the year?


Step 2. Accommodation – Effectiveness

• An effective accommodation:

– Removes a workplace barrier that otherwise impedes an employee from performing his job because of his disability

– Will enable the employee to perform the essential functions of the position in the “near future”

• If an employee refuses to accept an effective accommodation, the employee may not be “qualified” to hold the position.


Leave as an Accommodation – Effectiveness

• Whether leave is effective as an accommodation is a fact-specific inquiry, weighing many factors:– Nature of the employee’s disability and limitations– Anticipated duration of leave– Employee’s position – essential and marginal functions– What purpose the leave will serve to enable employee to perform

essential functions– Likelihood (not certainty) that employee will be able to perform essential

functions at end of leave (will be a “qualified” individual with a disability)– The success or failure of accommodations tried in the past for the

employee’s condition– The alternatives to leave as an accommodation



Ernie is a skilled computer programmer for your medical diagnostics company, which has 140 employees. Ernie and the 4 other employees holding the same position as Ernie each came to the company with a strong background in programming, but also had to undergo 2 weeks of extensive training in the particular products and technologies of the company before assuming the position. The 5 programmers work solid days to fulfill customer expectations, but the company tries not to require overtime to keep up with the deliverables.

Ernie has a torn rotator cuff from playing basketball and has requested a leave of 26 weeks for surgery, recovery, and physical therapy.

Do you approve the leave? What factors should you consider? What alternatives do you have?


Step 3. Accommodation – Undue Hardship

If a leave of absence is:

1.Reasonable; and2.Effective to enable the employee to perform the essential functions of the position; then 3.Undue hardship is the employer’s ONLY defense, ONLY reason not to provide the leave.


Step 3. Accommodation – Undue Hardship

• A reasonable accommodation will impose an undue hardship if it imposes “significant difficulty or expense”:

– Significant financial difficulty or – Significant operational difficulty

• Unduly extensive, substantial, disruptive, or those that would fundamentally alter the nature of the business operation.

• The undue hardship analysis focuses on: – The resources and circumstances of the particular employer and/or the

business unit of the employer that is impacted– In relationship to the cost or difficulty of providing a specific

accommodation.


Leave & Undue Hardship – Factors

• Does leave as an accommodation create an undue hardship? Consider:

– Cost of the leave to get the employee’s work done (overtime, temporary help, extra training)

– Overall financial resources of the employer and/ or the facility providing the leave– Employer policies regarding leave of absence– Number of employees at the facility– Number of employees in the particular/similar position– Number of employees with the necessary skills & qualifications(continued . . . )


Leave & Undue Hardship – Factors (continued)

• Does leave as an accommodation create an undue hardship? Consider: ( . . . continued)

– Availability of temps with necessary skills & qualifications– The effect of employee’s leave on business operations,

workflow, production, etc. – Employer’s ability to ensure a sufficient number of employees

to accomplish the required work– Employer’s ability to meet goals or to adequately serve its

clients/customers– Employer’s need to shift work to other employees, preventing

them from their own work or imposing significant additional burdens on those employees (employee “morale” not enough)


Amount of Leave as an Accommodation

So . . .

How much leave is a reasonable accommodation?



• SORRY – No clear answer. Use the 3-step analysis:– First, analyze whether leave is reasonable as an accommodation

oLeave in general is a reasonable accommodation, unless it is undefined/unlimited

– Second, will leave be an effective accommodation?oWill time off enable the employee to perform the essential functions of

the position upon return (with or without some other workplace accommodation)?

– Third, analyze whether leave or the length of leave constitutes an undue hardshipoWill it cause significant financial or operational difficulty?



• Can you count time off under FMLA, STD, or company policies toward an ADA leave accommodation?

• Yes, but – – EEOC position (informal): Make the reasonableness and undue hardship

analysis at the beginning of the leaveoAvoid the scenario of endless additional leave requests; document

what total amount of leave will be an undue hardship at the outset– Reality: Most employers don't have the time or resources to do an ADA

accommodation analysis when there is another type of leave available oAnd, what if the employer’s “hardship” circumstances have changed?



•Reasonable length of leave – examples:

– A reasonable leave will allow an employee to perform the essential functions of the job upon return

– Leave is no longer than other company-provided leaves oBUT: existence of a leave program does not establish the amount of

time off – a reasonable accommodation may require more or less than the policy

oThe leave must still enable the employee to return to work and perform the essential functions of the position



• Unreasonable leave – examples: (many deal with certainty for the employer)

– Indefinite leave of absence– Endless number of leave extensions– Unlimited sick days to use intermittently– The ability to take sudden, unscheduled absences indefinitely


Benefits during ADA Leave

• Employer must continue the employee’s health insurance coverage during ADA accommodation leave if the employer also provides coverage for other employees in the same leave or part-time status.

• Coverage must be on the same terms normally provided to employees in the same leave or part-time status.


Reinstatement Following ADA Leave (Job Protection)

• First: Same position, unless reinstatement creates an undue hardship

• Second: Reassignment – must give preference; usually not a competitive application

–Vacant equivalent position for which employee is qualified –Vacant lesser position–But, reassignment is also subject to undue hardship defense, such as a violation of a seniority system


Reinstatement Following ADA Leave (Job Protection)

• Employer never has to:

– Create a position – Assign employee to a position for which she is not qualified – Train the employee for the position (except for routine training provided to all

employees new to the position)– Lower qualification standards for the job – Lower production standards for the job


Be Prepared in Advance –Action Items to Deal with Leave as an Accommodation

1. Review your company policies:

– Review and update policies on leave, absences, and no-fault attendance:oNo automatic terminations at end of leave for medical reasons, or if

employee exceeds absence policy due to medical conditionoNo 100% rule for return to workoSpecify reporting procedures for foreseeable and unforeseeable

leave oRequire periodic status reports from all employees on leaveoDesign policies that are flexible for individual circumstances and/or

allow for exceptions



1. Review your company policies (continued):

– Implement an ADA policy and notify employees:

oState that the company will provide reasonable accommodations for disabilities

oUrge employees to identify needs before performance or attendance issues occur

oProvide contact options to discuss an accommodation



2. Review & update job descriptions – make them accurate and realistic:

– Essential & nonessential functions – oInclude attendance, punctuality, reliability,

etc. as essential functions if the work cannot be performed remotely, on a sporadic basis, etc.

– Job qualifications – Production standards – especially relating to

essential functions



3. Identify and prepare a company representative (and a backup) responsible for compliance with the ADA, FMLA, and other leave laws:

– Don’t skimp – arm the company expert with ongoing training, updates, & outside resources– Promote and publicize the company’s focus on

compliance and employee assistance– Make the expert known throughout the company



4. Train supervisors:

– Issue spotters – not experts– Basics of leave of absence laws (and others)– Confidentiality issues– Provide contacts to report concerns, leave requests,

other information



5. Develop forms to document the ADA process:

– Checklist for ADA accommodation process and all communications with employee, medical providers, and others

– Form for employee to request an accommodation– Medical assessment form for completion by health care

provider

See White Paper for sample forms.


Questions?Speaker Biography

Marti Cardi -- Chief Compliance Officer -- Reed Group – [email protected] -- 303-407-0687

Marti Cardi is the Chief Compliance Officer for Reed Group Ltd., a leave of absence management company. Marti is responsible for ensuring that Reed Group’s services and software are provided in compliance with state and federal leave laws. Marti is the chief author, editor, and content expert for Reed Group’s Leave of Absence Advisor®, an in-depth referential guide to the Family and Medical Leave Act and state leave laws. Marti has practiced employment law for more than 25 years as in-house counsel for national companies and in private practice. She holds a BA from Colorado State University and a J.D. from the University of Colorado School of Law.


Resources• WHITE PAPER: Cardi, Martha J., and Holstein, Megan. When Must an

Employer Provide Leave as an ADA Reasonable Accommodation?, (2012); http://www.reedgroup.com/articles-white-papers.htm

• EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, (Oct. 17, 2002); http://www.eeoc.gov/policy/docs/accommodation.html

• The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil rights Act of 1964 Fact Sheet, Equal Employment Opportunity Commission; http://www.eeoc.gov/policy/docs/fmlaada.html

• The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, U.S. Equal Employment Opportunity Commission; http://www.eeoc.gov/facts/performance-conduct.html

• EEOC presentation, “Let’s Talk ADA”, Miami, September 20, 2012.• Job Accommodation Network, http://askjan.org

©2014 Reed Group. Confidential and proprietary information. Do not duplicate or distribute.1 Leave...

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