The EEOC Crackdown: Part Two – Avoiding Liability for Leave Policies

Yesterday I wrote a post reminding readers about the EEOC litigation focus on inflexible leave policies, which raises the question: what should employers be doing to avoid liability in this area?

To answer this question, I think it helps to take a step back.  As most employers know, a leave of absence or an extension of a leave of absence are two types of reasonable accommodations that employers covered by the ADA (i.e. employers with 15 or more employees) must consider to accommodate a disabled employee.   When a disabled employee needs an accommodation, employers are required to engage in an “interactive process” with the employee to determine what reasonable accommodations will effectively allow the employee to perform the essential duties of his or her position.  The interactive process is a fact-specific process that includes consideration of the particular employee’s needs and the duties of that employee’s position.

Despite these requirements, many employers have implemented strict attendance policies, policies that limit the amount of time an employee can take as leave, or policies that place strict conditions on employee’s return to work. The motivation for these policies is not necessarily bad – “inflexible” policies that apply equally to everyone ensure consistent treatment of employees.  However, under the ADA, if an employee suffers from a disability (and disability is broadly defined to include many, many non-temporary medical conditions), employers are not allowed to be inflexible.  Rather, employers must consider, with an open mind, employee accommodation requests.
 So, here are some tips:

• First, employers covered by the ADA should never have a black and white policy on the maximum duration of leave available to employees. Even generous leave policies of one year or more are problematic if the limits are strict and do not allow for accommodations.  Employers must be willing to consider a longer period if necessary to reasonably accommodate the employee's disability. 
• Leave policies that place general limits on available leave should also say that additional leaves may be available in accordance with applicable law.  
• Policies that prohibit an employee from returning to work until they have “no restrictions” are unlawful.  While some work restrictions may effectively prevent an employee from being able to perform the essential functions of his or her position, employers are required to consider whether the restrictions can be reasonably accommodated.  If an employer finds itself having difficulty accommodating a particular restriction, it’s a good idea to consult with legal counsel about the issue and potential next steps.
• Attendance policies should be closely examined to ensure that disabled employees and employees on FMLA leaves of absence are not inappropriately subject to negative treatment because of their protected absences.
• Finally, employers must consider qualified disabled employees for open positions on the same basis as other employees. Any program that restricts certain light-duty jobs to a certain class of individuals (i.e. those returning from a workplace injury) is likely to run afoul of the ADA.