FMLA

Extended Leave as a Reasonable Accommodation: The Seventh Circuit View

September 25, 2017 By William Goren 2 Comments

Today’s case is Severson v. Heartland Woodcraft, Inc., a case from the Seventh Circuit decided September 20, 2017. The blogosphere has lit up with it, and I thought I could add my own spin to it even though several bloggers have done a real nice job talking about it. As is usual, the case is divided into categories and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the sections. Before moving on, for Jewish readers, I want to wish them a happy and healthy new year, and if they are fasting, a good fast on Yom Kippur this Saturday.

Facts

From 2006 to 2013, the plaintiff worked for the defendant, a fabricator of retail display fixtures, in a physically demanding job. In June 2013, the plaintiff took a 12 week medical leave under the FMLA in order to deal with serious back pain. On the last day of his leave, he underwent back surgery, which required that he remain off work for another 2 to 3 months. He asked the defendant to continue his medical leave, but by then had exhausted all of his FMLA entitlement. Critically, the company denied his request and terminated his employment, but invited him to reapply when he was medically cleared to work. About three months later, the plaintiff’s Dr. lifted all restrictions and cleared him to resume work, but the plaintiff did not reapply. Instead, he sued the defendant alleging discrimination for violating the ADA because the defendant did not provide the accommodation of a three month leave of absence beyond his FMLA leave. Plaintiff lost at the lower court level and appealed.

Court’s Reasoning

The term, “reasonable accommodation” is expressly limited to those measures enabling the employee to work. An employee needing long-term medical leave cannot work and therefore, is not a qualified individual under the ADA.
A multi-month leave of absence is beyond the scope of reasonable accommodation under the ADA.
Under 42 U.S.C. §12111(9), a reasonable accommodation may include a variety of things. The statute’s use of the phrase “may include,” means that the concept of reasonable accommodation is flexible and the listed examples are illustrative.
A reasonable accommodation is one allowing the employee with a disability to perform the essential functions of the employment position. If the proposed accommodation does not make it possible for the employee to perform a job, then the employee is not a qualified individual as defined by the ADA.
Putting together the definitions of qualified and reasonable accommodation, leads to the conclusion that a long-term leave of absence is not a reasonable accommodation.
Intermittent leave, a couple of days or even a couple of weeks, may, in appropriate circumstances, be similar to a part-time or modified work schedule, which are two of the examples listed in the statute. However, a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. In fact, the inability to work for multiple months removes a person from the class protected by the ADA, i.e. they are no longer qualified.
Long-term medical leave is the domain of the FMLA, which entitles employee to a total of 12 weeks of leave during any 12 month period for taking care of an individual or family member’s serious health condition, but the ADA applies only to those who can do the essential functions of the job.
The EEOC’s view that a long-term medical leave of absence qualifies as a reasonable accommodation where that leave: is of a definite time-limited duration; requested in advance; and likely to enable the employee to perform the position’s essential job functions when he returns simply doesn’t wash. It doesn’t wash because such an interpretation equates reasonable accommodation with effective accommodation; an approach rejected by the United States Supreme Court in US Airways, Inc. v. Barnett.
Adopting the EEOC approach transforms the ADA into a medical leave statute by in effect becoming an open-ended extension of FMLA. That is not a tenable approach to the term reasonable accommodation.
The plaintiff has the burden to prove that there were in fact vacant positions available at the time of his termination.
An employer is not required to create a new job or strip a current job of its principal duties to accommodate an employee with a disability.
The defendant did not have a policy of providing light-duty positions for employees suffering injuries on the job. While they did have an ad hoc system for temporary light duty assignments, the granting of such assignments were infrequent and generally lasted no longer than two days.

III

Takeaways:

The critical fact here is that the plaintiff was invited to reapply when well but did not do so.
If I am an employer, I would go very slow with respect to adopting this case as policy. It may or may not be the law once the Supreme Court gets a hold of it, but it is certainly bad preventive law. As a matter of preventive law, the interactive process is key. I also would evaluate the situation utilizing the Samper decision, which we discussed here, in order to see whether attendance was an essential function of the job.
On the plaintiff’s side, early communication of leave needs to happen, and engaging in the interactive process is much preferred over waiting until the last possible minute to inform the employer of your leave needs.
Under this decision, the plaintiff has the burden of proof to show that there were vacant positions available at the time of his termination. This also gets into preventive law with respect to how to deal with the mandatory reassignment issue. Interestingly enough, the Seventh Circuit has a very strong policy for mandatory reassignment, which we discussed here. So, especially in the Seventh Circuit, while a multiple leave of absence means that the person with a disability is no longer qualified for that position, you can’t forget about the Seventh Circuit’s view on mandatory reassignment.
This is a specific rejection of the EEOC approach with respect to extending FMLA leave as a reasonable accommodation for a disability. Therefore, one wonders whether the EEOC will not seek an en banc rehearing. One also wonders if that fails if the EEOC would not seek an appeal to the United States Supreme Court. Regarding an appeal to the United States Supreme Court, the EEOC has not faired terribly well there, and the United States Supreme Court in employment matters has not been particularly friendly to persons with disabilities. So, one also wonders whether the EEOC, especially if a rehearing en banc is not successful, might not let the whole thing drop and focus on convincing other Circuits of their point of view.
If you as an employer are going to adopt an inflexible FMLA leave policy, termination after 12 weeks of leave, then you want to be sure that prior to termination you evaluate whether that individual can perform the essential functions of the job with or without reasonable accommodations per the ADA even though the FMLA requires no reasonable accommodation analysis. You also want to make sure that you have fully evaluated any mandatory reassignment obligations existing in your Circuit before terminating.
Inflexible leave policy is just bad preventive law.

The Interactive Process

May 25, 2017 By William Goren Leave a Comment

Here, in Decatur, Georgia, and for that matter in the Atlanta metropolitan area generally, kids start school very early and end very early. In Decatur’s case, they start school the first Monday in August and end right before Memorial Day. So, next week my daughter starts summer vacation. She is in for a pretty busy summer, lots of fun camps and her bat mitzvah. So, I thought I would get ahead of next week, which she has off, and get a blog entry up to cover next week.

Today’s blog entry talks about how much notice from an employee is necessary for triggering the interactive process. I have previously talked about it in some way in this blog entry. As mentioned in that blog entry, preventive law is an excellent way to go about it because getting a handle on the specific notice required is very difficult to do. As usual, the blog entry is divided into categories: Valdivia v. Township High School District 214; Ruggiero v. Mount Nittany Medical Center; and takeaways. The reader is free to focus on any or all of the sections.

Valdivia v. Township High School District 214

In this case, the plaintiff was subject to a severe pattern of harassment that resulted in her behavior changing and she was forced to resign. She brought suit under title VII as well as the FMLA claiming that her employer should have known she was dealing with a serious health condition because of her behavior changes, and therefore, the defendant interfered with her FMLA rights by failing to provide her with the notice that she had a right to take job protected leave under the FMLA. In agreeing with the plaintiff, Magistrate Judge Sidney Schenkier of the Northern District of Illinois, Eastern Division, held the following:

Where an employee is unaware she suffers from a serious medical condition or is unable to communicate her illness to her employer, the notice requirement may be met indirectly. So, clear abnormalities in the employee’s behavior can constitute constructive notice of a serious health condition.
Observable changes in an employee’s condition or uncharacteristic or unusual conduct at work may provide an employer with adequate notice of a serious medical condition and eliminate the need for an express request for medical leave.
Plaintiff alleged that in July 2016, one month after transferring due to harassment at another school, she became extremely distraught and began crying regularly and uncontrollably at work. She cried uncontrollably multiple times to her supervisor who had known her since 2012. She also told her supervisor that she was overwhelmed, afraid, not sleeping or eating, and unsure if she could continue to work. Further, she also cried uncontrollably to two other employees at the high school telling them she was unsure whether she could continue to work for the defendant. The response of her supervisor was to tell her to decide whether or not to resign. After she resigned, she was hospitalized for four days and diagnosed with depression, anxiety disorder, panic disorder, and insomnia. Accordingly, plaintiff plausibly alleged the defendant was on notice that she may have been suffering from a serious health condition at the time she was asked to decide whether to resign, particularly since the supervisor had known the plaintiff for several years and would/should have realized that her behavior was a dramatic departure from her normal behavior. Regardless of the prior relationship, the behavior of the plaintiff was unusual for any employee.
Relying on a Seventh Circuit case involving depression, The fact that plaintiff did not know of her medical condition at the time of her resignation is not fatal to her FMLA claim. A plaintiff can be excused from giving direct notice where her medical condition prevents her from communicating the nature of her illness.

Ruggiero v. Mount Nittany Medical Center

In this case, the plaintiff suffered from both anxiety and eosinophilic esophagitis. On April 22, 2015, the defendant sent a memo to all clinical employees stating that it was instituting a new requirement that all clinical employees had to obtain a tetanus, diphtheria, and pertussis vaccine. When plaintiff tried to remove herself from that requirement through doctors notes and communication with her employer, the employer responded by asking her whether her condition was such that she had one of the conditions making the vaccine medically contraindicated. When that information was not forthcoming, plaintiff was terminated. In granting the defendant’s motion to dismiss for failure to state a claim, Judge Brann of the Middle District of Pennsylvania reasoned as follows:

Just because a plaintiff conveys a healthcare professional’s initial findings of a medical impairment, that does not support an inference that the defendant was aware of a disability.
Simply informing the employer of a particular condition, is not the same thing as providing to the employer knowledge that the employee is substantially limited in some major life activity.
Vague and conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the ADA.
It is up to the employee to show that the employer knew of the employee’s substantial physical or mental limitations resulting from the diagnosed impairments.
For purposes of proving ADA discrimination, a distinction must be made between the employer’s knowledge of an employee’s disability versus an employer’s knowledge of any limitations experienced by the employee as a result of that disability. This distinction is critical because the ADA requires employers to reasonably accommodate limitations, not disabilities.
The determination of whether an individual has a disability is not necessarily based upon the name or diagnosis of the impairment the person has, but rather on the effect that impairment has on the life of the individual.
The hospital had good reasons, based upon a large body of medical evidence, for requiring the vaccination of all healthcare personnel.

After deciding that the employer did not have the requisite notice, Judge Brann went on to talk about how the employer still wins even if he were to make the assumption that the employer was on notice as to both her disability and the need for accommodations because the employer acted in good faith in attempting to accommodate plaintiff despite a lack of knowledge of her mental and physical limitations. In reaching that conclusion, he reasoned as follows:

Although the ADA does not explicitly refer to an interactive process, the Third Circuit has endorsed that concept as a means of furthering the ADA’s purposes because the interactive process allows the employee to consider accommodations he or she may not otherwise be aware of while simultaneously allowing the employer to better understand the potential range of jobs the employee can do.
Making out a prima facie case for a breakdown in the interactive process under the ADA involves showing: 1) the employer knew about the employee’s disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodation; and 4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.
In a footnote, the court noted that a claim brought under failure to accommodate does not require any evidence or inference of intentional discrimination. Therefore, McDonnell-Douglas (see this blog entry), is not used to evaluate failure to accommodate claims.
All that is required when it comes to the interactive process is that the employers make a good-faith effort to seek accommodations.
The facts show that the employer was willing to exempt the plaintiff from the vaccination requirement if she had provided evidence her alleged disability precluded her from obtaining the vaccine due to the medical contraindications indicated by the manufacturer. Had she furnished such evidence, the employer would have made an exception to the vaccination requirement.
The law does not mandate an employer or labor organization accommodate what amounts to a purely personal preference.
In a footnote, the court noted that the letter from the plaintiff’s doctor explained the plaintiff was worried about the side effects of the vaccine. That letter did not say that either her anxiety or her eosinophilic esophagitis were the medically-based reasons she could not take the vaccine. So, the court said plaintiff failed to appreciate the nature of the restriction required to qualify as a person with a disability under the ADA. After all, most people in the general population would agree that they feel the same discomfort as plaintiff when it comes to vaccines.
The interactive process does not demand that any particular accommodation be made by the employer.
The ADA was not intended to provide a way for a court to establish conditions of a person’s employment.
Congress intended that persons with disabilities have the same opportunities available to them as are available to persons without disabilities.
If it turns out that there is no existing job that the employee can perform with or without reasonable accommodations, then under the ADA, the company cannot be held liable.

III

Takeaways:

Courts for years have struggled with just what is necessary for an employee to do in order to give the employer notice of his or her disability and trigger the interactive process. The decisions are difficult to get a handle on and are a bit all over the place.
Preventive law is critical. An employer is better off erring on the side that they have been put on notice rather than waiting for something more explicit. After all, magic words, as we have discussed here and here, are not necessary to trigger the interactive process.
Valdivia has not been the rule for courts when dealing with whether a person with a disability has presented sufficient information to trigger the interactive process. I also don’t think Valdivia will be persuasive when it comes to future ADA cases because it goes against the weight of previous ADA authority and because Valdivia involves the FMLA and not the ADA. Also, despite the reasoning of the court, plenty of facts exist so that an employer could reasonably be said to have been aware of a serious health condition/disability.
Interactive process cases break down into different ways. There are Circuits where the interactive process is a separate cause of action, but there are also Circuits where the interactive process is not a separate cause of action. If you are faced with such a case, be sure to check the approach your Circuit uses.
Where a job contains a prerequisite, such as a vaccination requirement, it is always helpful on the employer side if you have bona fide reasons backing up the need for that requirement.
Judge Brann raised a really important point when he said that the ADA requires employees to reasonably accommodate limitations and not disabilities. I must confess I hadn’t thought of it that way before, but it makes a great deal of sense. After all, the definition of a disability is a physical or mental impairment that substantially limits one or more of life’s major activities, and both parts have to be true for a disability to exist under the ADA.
When it comes to interactive process cases, remember it is the party that breaks down the interactive process that bears the consequences.
Personal preferences are not obligations imposed by the ADA.
While the amendment to the ADA have made it much easier to be considered a person with a disability, even those amendments go beyond the realm of simple discomfort/simple anxiety associated with various activities.
An employer must be on notice for both the disability and the substantial limitation on a major life activity before the obligation to start the interactive process is triggered.

EEOC Guidance on Employer-Provided Leave and the ADA

August 10, 2016 By William Goren Leave a Comment

First off, I want to thank everyone who voted for me for the 2016 ABA blog 100. It has been two years in a row for Understanding the ADA, and I am keeping my fingers crossed for a third. Thanks again everyone!

Turning to the topic of the week, about a week or so ago my Google alerts lit up concerning the EEOC Guidance on Employer-Provided Leave and the ADA, which came down on May 9 of 2016. I am not sure why my Google alerts lit up about a week ago considering the guidance came down in May. Nevertheless, I thought it would be useful to go over the guidance. I have been thinking in my head about how to organize this particular blog entry, and I came up with a system where the odd numbers would be the EEOC view and the even numbers would be my thoughts. So, section I is the EEOC view juxtaposed against my comments. While section II, are the takeaways.

The Guidance Itself:

EEOC view: just what is a reasonable accommodation? Citing to an appendix to their regulations, the EEOC says that a reasonable accommodation is generally any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.
Comments: Don’t have a problem with the formulation. As I have written numerous times in my book over the years, it helps to think of this in terms of getting the person with a disability to the same starting line as those without disabilities.
EEOC view: employer policy requiring employees on extended leave to be 100% healed or able to work without restrictions may deny some employees reasonable accommodations that would enable them to work.
Comments: absolutely as we discussed in this blog entry, which was one of my very first blog entries.
EEOC view: employers often fail to consider reassignment as an option for employees with disabilities who cannot return to their job following leave.
Comments: for sure. See this blog entry for example.
EEOC view: consider this situation: an employer provides four days of paid sick leave each year to all employees and does not set any condition for use. That is, the employer’s sick leave policy does not require any documentation, and requests for sick leave are routinely granted based upon an employee’s statement that he or she needs the leave. If the employer demands documentation for the use of such leave because the employee is dealing with a disability, then the supervisor’s actions violate the ADA because the employee is being subjected to different conditions for use of sick leave than employees without a disability.
Comments: makes sense.
EEOC view: consider this situation: an employer permits employees to use paid annual leave for any purpose and does not require they explain how they intend to use it. If the employer denies an employee’s use of annual leave due to her disability, then you have an ADA problem. In this situation, the supervisor forced an employee with a disability to use sick leave instead of annual leave to deal with a disability even though he had never denied other employees annual leave based upon the reason for using it.
Comments: makes sense.
EEOC view: employers are entitled to have policies requiring all employees to provide a doctor’s note or other documentation to substantiate the need for leave.
Comments: makes perfect sense as all employees are being treated the same.
EEOC view: an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it so long as an undue hardship is not created even where: the employer does not offer leave as an employee benefits; the employee is not eligible for leave under the employer’s policies; or the employee has exhausted the leave the employer provides as a benefit.
Comments: not a problem but the emphasis of the EEOC is that the employer must consider providing unpaid leave. The specific accommodation could be different depending upon the results of the interactive process.
EEOC view: reasonable accommodation does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy.
Comments: absolutely.
EEOC view: consider this situation: an employer provides 10 days of paid annual leave and four days of paid sick leave each year to employees who have worked for the company less than three years. After three years, employees are eligible for 15 days of paid annual leave and eight days of paid sick leave. An employee who has worked for only two years and has used his 10 days of paid annual leave now requests six days of paid sick leave for treatment for his disability. Under its leave program, the employer must provide the employee with four days of paid sick leave but may refuse to provide paid leave for the two additional days of sick leave because the employee has not worked long enough to earn this benefit. However, the employer has to provide two additional days of unpaid sick leave as a reasonable accommodation unless it can show that providing the two additional days would cause undue hardship.
Comments: no problems with much of this section. However, the section saying that the employer must provide the two additional days of unpaid sick leave as a reasonable accommodation absent a showing of undue hardship overstates the case. Again, the specific accommodation should be the result of the interactive process. Sure, it is absolutely conceivable that such a process would mean granting the two days of unpaid leave, and that it would be unlikely to be an undue hardship considering the rest of the employer’s policy. However, that is not the same as saying the granting of this accommodation is mandatory. We simply don’t know what the interactive process would reveal.
EEOC view: consider this situation: an employer’s leave policy does not cover employees until they have worked for six months. An employee who has worked for only three months requires four weeks of leave for treatment of his disability. Although the employee is ineligible for leave under the employer’s leave policy, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause an undue hardship.
Comments: completely agree that once a person is an employee, the ADA applies regardless of probationary status or regardless of length of tenure of the employee. Also agree that unpaid leave could be a reasonable accommodation and that anything goes with respect to accommodating a person with a disability unless an undue hardship exists. My issue is the statement that providing unpaid leave is mandatory absent an undue hardship. Again, as mentioned above, we simply don’t know what the interactive process would reveal. It is possible that the unpaid leave is the best situation, but maybe the interactive process would reveal something else. Reassignment perhaps?
EEOC view: consider this situation: an employer’s leave policy explicitly prohibits leave during the first six months of employment. An employee who has worked for only three months needs four weeks of leave for treatment of a disability and the employer tells him that if he takes the leave, he will be fired. Although the employee is ineligible for leave under the employee’s leave program, the employer must provide unpaid leave as a reasonable accommodation absent a showing of undue hardship. If the employer could provide unpaid leave without causing an undue hardship, but fires the individual instead, then the employer violates the ADA.
Comments: don’t have a problem except for the mandatory nature of the unpaid leave. Again, we just don’t know what the interactive process would reveal.
EEOC view: When an employee requests leave, or additional leave, for a medical condition, the employer must treat the request as one for reasonable accommodation under the ADA.
Comments: the EEOC is making this argument in a case, Capps v. Mondelez Global LLC, currently on appeal with the Third Circuit. However, as the lower court noted in the opinion hyperlinked above, it isn’t that simple. One has to remember, that to get FMLA leave, it has to be shown that a person cannot do the job’s essential functions. It does not have to be shown that the person can do the essential functions of the job with or without reasonable accommodations. Therefore, making a request for FMLA leave does not, according to the lower court, mean a request for reasonable accommodation is involved since whether a person can do the essential functions of the job with or without reasonable accommodations is not the question under the FMLA. In essence, it is much the same argument used by employers when a person files for Social Security Disability Income and later claims they have a right to proceed under the ADA, which we discussed in this blog entry. That said, as a preventive matter, it would make sense for the employer to use some common sense when a leave request comes through and start the interactive process to see what would work best for both sides.
EEOC view: when seeking information to help figure out where the interactive process will go, much of the focus will go to the following issues: the specific reasons the employee needs the leave; whether the leave will be for a block of time or intermittent; and when the need for leave will end. Also, depending upon the information the employee provides, the employer should consider whether the leave would cause an undue hardship.
Comments: makes sense. I do find the phrasing, “depending on the information the employee provides…,” a bit funny, as the employer should always be keeping in mind whether an undue hardship exists. Keep in mind, undue hardship can either be logistical or financial (see 29 C.F.R. § 1630.2 (p)(2)), and that a showing of financial undue hardship is a very rare occurrence.
EEOC view: an employer may obtain information from the employee’s health care provider (with the employee’s permission of course), in order to confirm or to elaborate upon information that the employee has provided. Employers may also ask the healthcare provider to respond to questions designed to enable the employer to understand the need for leave, the amount and type of leave required, and whether reasonable accommodations other than (or in addition to), leave may be effective for the employee (perhaps resulting in the need for less leave).
Comments: absolutely. However, it doesn’t make a lot of sense for the employer to do any of this unless the employer is having it all evaluated against the essential functions of the job. So, the employer should make sure that the person assessing the employee is given a copy of the essential functions of the job as the job is actually practiced. Once the employer has that information, don’t forget about the interactive process and utilizing the Job Accommodation Network.
EEOC view: consider this situation: an employee with a disability is granted three months of leave by an employer. Near the end of the three month leave, the employee requests an additional 30 days of leave. In this situation, the employer can request information from the employee or the employee’s health care provider about the need for the 30 additional days and the likelihood that the employee will be able to return to work, with or without reasonable accommodation, if the extension is granted. However, an employer that has granted leave with a fixed return date may not ask the employee to provide periodic updates, although it can reach out to an employee on extended leave to check on the employee’s progress.
Comments: not a problem here.
EEOC view: although employers are allowed to have leave policies establishing the maximum amount of leave an employer will provide or permit, they may have to grant leave beyond this amount as a reasonable accommodation to employees requiring it because of his disability unless the employer can show that doing so will cause an undue hardship.
Comments: very confusing. On the one hand, the EEOC is saying that they may have to grant leave beyond the amount of maximum leave, but on the other hand they are saying that it has to be done unless an undue hardship exists. As mentioned above, the EEOC also uses in this guidance the term, “must.” It simply isn’t clear what is going on here. Again, as mentioned above, the granting of leave per the ADA may very well happen, but it is also possible that the interactive process will come up with a different solution. The key is making sure the interactive process occurs.
EEOC view: consider this situation: an employer covered under the FMLA grants employees a maximum of 12 weeks of leave per year. An employee uses the full 12 weeks of FMLA leave to deal with her disability but still needs five additional weeks of leave. The employer must provide the additional leave as a reasonable accommodation unless the employer can show that doing so will cause an undue hardship. However, the employer may consider whether other reasonable accommodations may enable the employee to return to work sooner than the employee anticipate, as long as those accommodations would be consistent with the employee’s medical needs.
Comments: first, this situation happens all the time. Keep in mind, that in granting additional leave, the courts have held that there must be a fixed time. An unfixed time for additional leave is not a reasonable request for a reasonable accommodation. Second, while the EEOC says that leave must be provided, they then turn around and say that it is possible that reasonable accommodations may allow the employee to return to work sooner. The phrasing is very confusing. Again, the key is the interactive process. Third, the phrasing that “the employer may consider whether other reasonable accommodation may enable the employee to return to work sooner than the employee anticipates so long as those accommodations would be consistent with the employee’s medical needs,” is a bit funny because the critical question is not the employee’s medical needs. The question is whether in the employee’s current physical or mental condition, the employee is capable of performing the essential functions of the job with or without reasonable accommodations.
EEOC view: consider this situation: an employer not covered by the FMLA, and its leave policy specifies that an employee is entitled to only four days of unscheduled leave per year. An employee with a disability informs her employer that her disability may cause periodic unplanned absences and that those absences might exceed four days a year. The employer should consider that request a request for reasonable accommodation and the employer should engage with the employee in an interactive process to determine if her disability requires intermittent absences, the likely frequency of the unplanned absences, and if an undue hardship exists.
Comments: in this situation, the critical piece is that the employee is not eligible for FMLA leave. Accordingly, I give it a makes sense rating. If the employee is eligible for FMLA leave, then see ¶24, discussing Capps.
EEOC view: with respect to form letters to communicate with employees nearing the end of leave provided under the employer’s leave program, such form letters should contain information within them that if the employee needs additional unpaid leave as a reasonable accommodation for his disability, the employee should ask for it as soon as possible in order for the employer to consider whether it can grant an extension without causing an undue hardship. If an employer relies on a third-party provider to handle lengthy leave programs, including short and long-term disability leave programs, it should ensure that any automatic form letters generated by these providers comply with the employer’s obligations under the ADA.
Comments: makes sense.
EEOC view: Employers handling request under the regular leave policy separately from request for leave as a reasonable accommodation should ensure that those responsible communicate with one another in order to avoid mishandling the request for accommodation. The employer should ensure that the contractor is instructed to forward to the human resources department in a timely manner any request for additional leave beyond the maximum period granted under the long-term disability program, and it refrain from terminating the employee until the human resources department has the opportunity to engage in an interactive process.
Comments: makes sense. Also, when it comes to short-term and long-term disability policies, you may be facing the same situation alluded to in Capps and in Cleveland v. Policy Management Systems Corp.
EEOC view: Where an employee requests additional leave exceeding an employer’s maximum leave policy, the employer may engage in an interactive process to assess the situation.
Comments: I don’t understand the use of the term, “may.” Seems to me that failure to engage in the interactive process in that situation, would expose the employer to liability. Even if it wouldn’t somehow, engaging in the interactive process in this situation would be good preventive law.
EEOC view: an employer violates the ADA if it claims an employee with a medical restriction poses a safety risk but cannot show that the individual is a direct threat. If an employee’s disability poses a direct threat, an employer must consider whether reasonable accommodation will eliminate or diminish the direct threat.
Comments: makes sense. On this, you might want to check out Chevron U.S.A. Inc. v. Echazabal.
EEOC view: consider this situation: the clerk has been out on medical leave for 16 weeks for surgery in order to address a disability. The employee’s doctor releases him to return to work but with a 20 pound lifting restriction. The employee refuses to allow the employee to return to work with the lifting restriction even though the employee’s essential and marginal functions do not require lifting 20 pounds. The employer’s action violates the ADA because the employee can perform the job and she does not pose a direct threat.
Comments: my problem is with the use of the term, “” The only issue under the ADA is whether the employee can perform the essential functions of the job with or without reasonable accommodations. When it comes to marginal functions, those functions can be written off by the employer or assigned to someone else. If indeed the marginal functions are something that has to be performed for that person’s job, then wouldn’t it be an essential function in the first place? Finally, keep in mind a function can be essential even if it is performed infrequently.
EEOC view: an employer may not prohibit the employee from returning to work solely because she needs reasonable accommodations. Of course, if the requested accommodation would constitute an undue hardship, that is another matter.
Comments: the word “solely,” is bothersome. See this blog entry for example.
EEOC view: When it comes to the interactive process, issues that need to be explored include: the specific accommodations and employee requires; the reason the accommodation or work restriction is needed; the length of time the employee will need reasonable accommodation; possible alternative accommodation that might effectively meet the employee’s disability -related needs; and whether any of the accommodations result in an undue hardship.
Comments: not a problem here. Keep in mind, that temporary disabilities may be a disability under the ADA as discussed in this blog entry.
EEOC view: where a person with a disability is no longer qualified/otherwise qualified for the position they are in, reassignment to a position that they are qualified for is mandatory.
Comments: this view is certainly consistent with the view of the Seventh Circuit, as we discussed above. Even there, a seniority system may be involved as we discussed in this blog entry from last week. Also, mandatory reassignment is not a view that is universal among all the U.S. Court of Appeals. Look for the United States Supreme Court to ultimately step in.
EEOC view: in determining whether leave results in an undue hardship, consider the following: the amount and/or length of leave required; the frequency of the leave; whether there is any flexibility with respect to the days in which leave is taken; whether the need for intermittent leave on specific dates is predictable or unpredictable; the impact of the employee’s absence on coworkers and on whether specific job duties are what constitute being performed in an appropriate and timely manner; and the impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, taking into account for example, the size of the employer.
Comments: I don’t see why these factors have to be exclusive. These factors do make sense when considering whether a logistical undue hardship is present. As I have written numerous times over the years, it makes sense to think of logistical undue hardship in terms of fundamental alteration (I once heard an EEOC Commissioner say the same thing).
EEOC view: when considering whether additional leave constitutes an undue hardship, the employer has the right to consider whether that additional leave on top of the leave already granted taken together constitute an undue hardship.
Comments: makes sense.
EEOC view: Leave as a reasonable accommodation includes the right to return the employee to his or her original position.
Comments: this is interesting. FMLA by statute requires such a return, but the ADA does not. If you don’t, is that an adverse action violating the ADA? Keep in mind, a demotion could be a reasonable accommodation as we discussed in last week’s blog entry. Also, an employer wants to keep in mind what obligations it has to reassign the employee to a vacant position the employee is qualified for, which we have also discussed above. Finally, the key is going to be the interactive process, whether it breaks down, and who is responsible for the breakdown of the interactive process.

Takeaways:

Never forget about the interactive process and utilizing the Job Accommodation Network. It is possible that granting a leave is not the only option. After all, it is entirely possible that the employee would rather work with or without reasonable accommodation than go on leave.
Make sure you understand just where your jurisdiction is on whether a person who is no longer qualified per the ADA to do their job must be re-assigned that they are qualified/otherwise qualified for.
This is a guidance by the EEOC and so it is anybody’s guess as to how persuasive the courts will take this. See this blog entry for example. Even so, this guidance contains many excellent preventive law ideas.
For people working in this area, Cleveland, mentioned above, and University of Texas Southwestern Medical Center v. Nassar are mandatory reading.
100% return to work policies are dead, but the readers of this blog already knew thatJ
Don’t forget about the possibility of direct threat, particularly but not exclusively where public safety is involved.
Marginal functions of the job can either be reassigned or written off. It is also possible that the marginal function is really an essential function. Remember, a function that is done every so often could still be an essential function.
Temporary disabilities may be protected under the ADA.
Whether leave as a reasonable accommodation includes the right to return the employee to his or her original position may or may not be the case. However, a thorough use of the interactive process could go a long way towards protecting the employer from liability in that regards.

Don’t forget about FMLA, but do not impose that scheme on the ADA either.

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