Transcript
PETER BERG
Thank you Howard. Welcome everyone Thank you for joining us for today’s session. The ADA audio conference session is a project of the ADA National network. The ADA National network is funded by the US Department of Health and Human Services, the administration on community living, National Institute on Disability, Independent living, Rehabilitation and research. So we welcome you all to today’s session, you can locate the regional ADA center that servers your state by visiting ADA-TA.org or you can contact your regional center calling 800-949-4232. So we are pleased that you are with us for the November session of the ADA audio conference series we have with us today a speaker, presenter that has joined us many times in the past and it’s always great to hear from Sharon Rennert. Sharon is a wealth of information. Sharon is with the US Equal Opportunity Employment Commission as you probably know better as the EEOC. She is a senior attorney advisor with the ADA Gina office of Legal counsel so as Sharon mentioned during her sound check. Today we will talk about Leave under the ADA and Sharon will also touch on some of the interaction we are not going to get into details or specifics of FMLA only how FMLA at times interact with the ADA leave as an accommodation. So again I welcome everyone and at this point I want to welcome Sharon Rennert and have her take over.
SHARON RENNERT
Thank you, Peter. And thank you to everyone. I always have to take it on faith that it's more than just Peter and myself on this webinar but I thank people for taking time out of their very busy schedules to join us today to talk about employer provided leave and the ADA. And as Peter mentioned, the focus today is going to be how the ADA addresses leave issues first as an employee benefit, then second as a potential form of reasonable accommodation, and also how that may overlap. With employers who provide FMLA, family and medical leave, whether under federal law or state law for some of you.So, there's a lot we're going to cover today. So, I want to dive in because we're going to do is go through the slides, and my understanding is everyone will have access to them after this program is over. So, in some ways, they're designed, if you will, as kind of a cheat sheet so people can have this to kind of readily consult when they have questions or want to refresh their memory about leave in the ADA.
So, we're going to actually begin and Peter, if you could make sure we get to, what, for me, is the first slide. Leave as an employee benefit.And then go into leave as an accommodation. In some ways, my colleagues and I may have done our work too well because everyone kind of gravitates first to leave as a reasonable accommodation when really it should begin looking at leave as an employee benefit. For those employers that provide some type of leave. Maybe it's just designated leave. Not designated for specific purposes. Some employers will designate leave to meet different needs. Sick leave. Annual leave. Some will do vacation leave. Personal leave. Different ways it can be designated but when we look at these kind of leave programs, these are employee benefits.
The ADA does not require employers to offer leave as an employee benefit. Employers can choose to offer it or not offer it. If they do offer it, they can choose how they want to structure it. The only ADA requirement for these kind of employee benefit programs is that employers have to extend the benefit to employees with disabilities so if everybody who is an employee, doesn't matter what your job is, everybody is entitled to join with the employers leave program, well, then, people with disabilities get to join it, too. If the employer imposes certain rules on their leave program. Say, you do not get to take leave until you've worked for a minimum of three months or six months or whatever time period the employer chooses so no leave until you've worked for a certain period of time, then that requirement extends to employees with disabilities as well. So, they have access employees with disabilities to leave programs on the same terms that are imposed on similarly situated employees.
So, when an employee with a disability is saying, I need leave, we don't jump to oh, let's handle this as reasonable accommodation. We first look to see if the need could be met under the employer's own leave program. Now, we don’t want to miss that particular step now part of this step can be consideration part of FMLA, in this context, I'm not talking about people who might be eligible for FMLA leave to deal with family situations. For a different day, a different speaker. But what we're interested today is the overlap with ADA where it's the employee looking to access the medical leave part of FMLA. And again, that really does generally take precedence before we get to reasonable accommodation. It's usually simpler to administer. It doesn't involve as many questions, usually as well see in a few minutes here when we get into leave as a reasonable accommodation so in terms of again looking to see what comes first if the employer number one has to be covered and I am really going to address the federal FMLA law but again certain states and localities will have their own version. But first of all if their employer covered under the Federal FMLA than if it’s an employee covered under the FMLA. So even if it’s an employee with a disability is that employee eligible under the federal FMLA than you look to see does that meet the individual needs. Leave can also come up for those employees who are covered under workers compensation.
Peter Berg
Sharon can you hold on for one second we are having a problem with our captioner for one second here. Get our captioner reestablished here before we continue.
Testing, 1, 2, 3 for our captioner
Thanks Sharon our captioner is back on and thanks folks for holding.
SHARON RENNERT
SHARON RENNERT: Okay. Very important. Happy to pause for that. So, we were talking about handling something first potentially FMLA or under worker's compensation. If the employee has a worker's compensation or injury or illness, leave can come up in that context as well and again, you start there. Basically, leave as a form of reasonable accommodation I like to say is the last thing that we look at. We can look at it if someone isn't eligible for other programs. So, my example a couple minutes ago, an employer says, for example, you have to work for six months before you can be eligible for leave under our own leave program and somebody has worked four months so they haven't met the six month threshold but it's an employer with a disability and they need a week off. You don't have to put them under the employer's leave program, they're not leave eligible but this is where we would look to leave as a reasonable accommodation. It would be handled that way. Or somebody is eligible to employees for FMLA leave but they've exhausted all 12 weeks, the maximum under the FMLA program, but they need a 13th week, basically, one more week of leave. Well, don't get 13 weeks of FMLA leave. They've maxed out on the 12 weeks so that 13th week, that final week that they need off due to disability now we look at leave as a reasonable accommodation. Or, maybe not. Maybe the employer has a leave program that would permit it to be handled that way. But we really get to leave as a reasonable accommodation last.
Next slide, please. One of the things that can be tricky and this is really a training issue. I'm delighted everyone who has joined us today but for employers who are participating today, to think about, who back in your organizations who might not be joining us today need to really understand this next topic we're going to address and that is that while I'm telling you that we really want to address a request for leave as a reasonable accommodation after making sure that we cannot employ it under the employee's leave program or under FMLA or we've exhausted those programs or worker's compensation.
Nonetheless, whenever an employee says, I have a medical condition. I require leave, I require time off, I require intermittent leave. However it's phrased, that constitutes legally a request for reasonable accommodation. As an employer, you do not have to treat it as a reasonable accommodation yet. Again, you can go to other programs first, but you can never forget that it is also considered a request for reasonable accommodation. And in this case, a form, the form takes as leave because remember, a request for reasonable accommodation under the ADA or if we have anybody from federal agencies here, the rehabilitation act, the sister law to the ADA, all that the employee has to indicate is he or she has a medical condition of some kind and because of that medical condition, needs something. And in this context, it's some amount of leave.
So, while you don't have to start initially treating it as a request for reasonable accommodation, you have to always keep that in mind. When does it become critical? Well, it becomes critical as soon as an employer official decides you're not eligible for the employer's leave program. Or you're not eligible for FMLA. It becomes critical if the employee has exhausted the leave that the employer offers under its own benefit program or has exhausted the 12 week maximum of FMLA leave. At that points, you have to, as an employer, remember, oh, yeah. This was always a request for accommodation. Since they're still indicating they need leave, now we have to treat it as such. We treat it as a request for reasonable accommodation and we have to start talking about it in that context. This is a very critical issue because for many employers, this gets overlooked. This is where an employer says oh, you maxed out on 12 weeks of FMLA leave. You're done. Either you're coming back to work or we're terminating you. Completely forgetting about the ADA and reasonable accommodation. Or somebody has exhausted all of the leave an employer offers under its will have program, its own benefit program.
Again, way too often, it's, either you're back at work or we're going to terminate you. And completely forgetting that there has to be a discussion about leave as a reasonable accommodation. Now, not saying that there may not be legitimate lawful reasons to deny leave as a reasonable accommodation. There may well be. But, an employer has to think about that. Has to consider that. It cannot be as we unfortunately see too often where there was no thoughtful process. It was simply, you've exhausted FMLA. You've exhausted our own leave program, you're done and that becomes a very dangerous position for any employer because if EEOC is brought into it and we start looking, it can become readily apparent there was no thoughtful process.
And that's what I want to focus on today is kind of what is it as an employer you need to do to determine whether there is a lawful reason under the ADA to deny any further leave or to say, oh, no, we may well be able without causing ourselves undue hardship to still grant you some additional leave here. One of the things to make sure about in this context is who is it who administers your various programs? What we sometimes see with employers is it can be different departments or different entities that have responsibility for various leave programs and they are not coordinating with one another. Sometimes it's an outside vendor a third party that might handle say the request for FMLA or maybe there dealing with workers compensation but they're not dealing with the ADA. ADA may be human resources and if you don't get either within an employer various departments that may handle pieces of this or with an outside vendor and then again, back at the employer, it may be HR or some other entity that's handling accommodation, it's if these groups are not talking to each other, if somebody who is administering FMLA realizes, oh, employees exhausted or about to exhaust 12 weeks, no more FMLA leave, but then they have to hand it off to whoever handles requests for accommodation. That kind of coordination. The understanding need to coordinate here
Again, very important for employers to look at organizationally how are they organizing this do the entity’s understand not just what they're responsible for but what another entity could be responsible for where there could be overlap and where there is potential for overlap. But where there's need for coordination to hand off smoothly in a timely way so that the next entity or next person in line can step in and start the interactive process with reasonable accommodation.
Okay. Our next slide, still, again, focused a bit on ADA and FMLA about overlapping obligations. One thing I try to always point out when I am dealing with both these laws because I understand as an employer, couldn't Congress pass one law having to do with leave instead of having what seems confusing. We have FMLA dealing with leave. We have ADA dealing with leave. And the reason that there are two different laws is they're serving two very different purposes. FMLA is handling leave as an employee benefit that is the focus of it. It's the impact of how the FMLA was written, how it's structured. The purpose is all about in making sure there is a certain amount of leave available under certain circumstances for certain employees. ADA, leave is only a certain part of it. Leave didn't drive the development of the ADA. The drafting of the ADA. It's only part of it when we get to reasonable accommodation.
So, while, yes, it means employers have to kind of put it together here, that's the reason that it isn't one law because they're coming at it very differently. Now, in terms of people's eligibility under both laws, FMLA, as we all know, it's an employee having a serious health condition which is rather a broad definition of the medical issue that a person is having to be eligible from that perspective from the FMLA leave. Again, just talking about the medical part of it, not the family leave part of it. The ADA's definition of disability as I hope everyone participating today understands is a rather broad definition of disability. But not probably as part of a serious health condition. It certainly when Congress about ten years ago expand the definition of disability, it certainly brought disability closer to what is meant by a serious health condition but it didn't bring it all the way so you can still have things that are serious health conditions might last two, three, four weeks, and that's going to get you coverage under FMLA, but it won't get you coverage under the ADA. There will forgot be leave as a reasonable accommodation because that's too short-term to be considered a disability.
Also to the extent that it's something that is more than a kind of minor nuisance if you will, that might get you under FMLA with a serious health condition but not quite serious enough to be found to be a disability. As we all know, disability is not about being permanent, not even necessarily about being long-term. It can be several months in duration. But, in terms of the kind of severity, we're not talking about an absolute inability to perform major life activities or even a severe or significant restriction performance of a major life activity. But, it's got to be something more than is said, kind of a minor nuisance.
So, they're not completely overlapping people who will be eligible for FMLA might turn around and say, I've exhausted my 12 weeks. Now I want leave as an accommodation under ADA but employers will be able to get additional documentation to have a whole discussion as to whether this really is a disability if it gets to that stage. They're not synonymous here.
Next slide on requesting leave because of a medical condition. If an employer is going to get into potential ADA coverage here. Again, hoping most of you, if not all of you participating today understands that with any form of accommodation and again, remembering that a request for accommodation does not have to mention the word disability, does not have to mention ADA, does not have to mention the term reasonable accommodation. It very plain English, as long as an employee is saying to an employer, official, I have a medical condition, whatever that may be and because of that medical condition, employer, I need you to do something for me. That's a request for a reasonable accommodation. And at that point, what employers generally need to think about doing is engaging in what we've come to call the interactive process. As I like to say, it's a fancy term meaning employer and employee are going to have to talk to each other. And perhaps even more importantly, listen to each other.
When I do training on the interactive process, I more and more emphasis the listening part of this for either side. It's not just talking, but listening as well. And this is really, this interactive process is the opportunity for the employer to gather information it needs and maybe it doesn't need any or doesn't need much. But, with an understanding of what the reasonable accommodation obligation means for an employer to gather the information it needs in order to make an informed decision whether leave as a reasonable accommodation must be provided or whether there is a lawful reason to turn the employee down. Now, we're going to talk a bit about the kind of information the employer is likely to need in this context, but, as the slide is showing us, it generally will focus at least initially on three major issues. Number one, the specific reason an employee needs leave. And this is especially true if this is going to be leave that is extending beyond the employer's leave program, the FMLA or worker's compensation. I mean, you're going to do this if all you're dealing with is leave as an accommodation, if that's the only leave program we're going to talk about. But, again, information the employer already may have if this is, for example, an employee who has exhausted their 12 weeks of FMLA, the employer is not starting from scratch. They're picking up where they left off, if you will. You pick up with what you learned in handling the FMLA requests and provide willing FMLA leave.
So, you're not reinventing the wheel, or as they say, starting from scratch. But you're really, it's a continuation. What's going on? What's the additional information I need to judge whether or not I, as an employer, need to give you additional leave as a form of accommodation? So, why do I need it and being specific about what the need is, has it changed from what it started. You know, some people will say, they need a few weeks of leave.
Or maybe the maximum 12 weeks of FMLA leave. And that will, you know, solve whatever the issue is and now as they're approaching the 12 weeks, now, my doctor says, I need additional leave. They need to be able to focus on why, what happened? Initially, again, under FMLA, employers can't get too much information, the FMLA regulation sort of specify where you can get. But, ADA is much broader. And again, doesn't mean, you don't think about the questions you need to ask. But, one of the types of questions certainly that the employers can raise is what happened to require more leave? Sometimes medical conditions, the doctor can think it's going one way and it goes another way. There are times to the best of their abilities, doctors can't always be certain how things are going to go. Something has happened.
So, yes, people need more leave, but, employers get that information. They're entitled to understand why. They're entitled to understand what type of leave we're talking about. And again, ADA doesn't go into the same specifics as FMLA did. But, leave generally takes two forms. A block of time, or intermittent leave. And again, employers are entitled to understand which of these are you asking for. Again, why? What's the need with intermittent leave? What are we talking about? What kinds of schedule? Exactly how the medical condition is dictating the type of leave that one is asking to get from an employer. And when? When do you need to leave? And for how long do you need it? Again, two issues that employers are entitled to explore to get the best answers they possibly can from the employee, if necessary, from the healthcare provider. But the beginning and end as well. I think it is very important for employers to put a little bit of thought into what information do they already have? What additional information do they need? And think about, why do you need it? Is it to understand the medical condition better and what is necessitating the leave and type of leave? That's usually in there. Also usually in there is if you're going to think about the impact on your own operations, if the employee is going to be out. Maybe it's additional time.
Again, let's stay with FMLA. They've already taken 12 weeks. Now they're asking for additional time. With the ADA, you're going to think about, is that going to somehow interfere in our operations, we've managed for 12 weeks, but, now, what happens what somebody is asking for additional leave. So, it's kind of assessing in the workplace, once you have an understanding of what kind of leave, what's going to happen in the workplace. And again, employers can take into account that the time they've already given off, so, let's say it's the full 12 weeks of FMLA leave, what happened during those 12 weeks. Did all the work get done or are there a significant amount of work that's just been piled up because we don't have people to do it? We don't have enough workers. We don't have workers who have the same specialization as the employee who's been off.
What's been the impact of the 12 weeks of FMLA leave that the employer had to give, but add to that what would be the anticipated impact if we were to grant whatever the extension of the leave might be? And this requires a little bit of thought. Sometimes it may be pretty obvious, but one of the things that my colleagues and I have found over the years is, again, you can say it's a training issue, where, employers haven't spent that time. And clearly, this should be involving a supervisor of the impacted employee. It can also involve the employee. It can involve various people. But, looking at what is going on that again, can either justify denying leave as an accommodation or no as an assessment that says, it's not going to cause us a little bit of grief here, but not enough to rise to the level of undue hardship.
Now, one of the things, let's go to the next slide, if we may. On the interactive process. I'm going to stick with this for a little bit because this is really so very important. This process. Remember with the ADA when there's a request for accommodation, two general issues employers potentially can explore. The first one is whether or not the condition rises to the level of being a disability under the ADA. Again, that ten years ago. Congress expanded the definition of this disability and one result of that is that it should be easier to tell a lot of things that are just not going to be covered but even more importantly from the vantage point of the EEOC how many things are coming in from this points. For many employers, they may not need to spend any time at all or very minimal time to establish disability. It’s a choice. The ADA does not require employers to establish that the condition or issue is a disability but employers are entitled to do so if they wish. And that's perfectly fine. Just make sure we're in the going to spend a lot of time today going over that definition of disability but again, whoever within an employer is going to do that certainly needs sufficient training on what makes something an ADA disability. And so, again, let's say, you've got one entity that handles FMLA leave but another entity of the employer is handling requests for accommodation. Your FMLA folks have to understand if, you know, we're getting to the end of the 12 weeks are going to be exhausted but the employee says they need more than 12 weeks, they need to hand it off. That's what they need to know. Hand it off and who they hand it off to, and it has to be done in a timely way as soon as they get information that the employee needs more than 12 weeks, they've got to hand it off. They don't necessarily need to know all the ins and outs and make the judgment call, is it or is it not a disability, if that's not how the employer has structured things. To the extent that it's the same entity, though, again, you want to make sure that people aren't so focused on FMLA that they've never really gotten the training on the ADA or sufficient training.
Again, to understand serious health condition is attached to FMLA but it's about weather something meets the ADA's definition of disability. Talking a lot about employers but I want to shift gears here to those people participating today who work with employees or represent employees or disability groups. Is the employees do play a role here, and they do have a bit of room to be proactive about things and I think one of the most important things that an employee can do, especially if they're starting out, with, say, FMLA leave; is that if they know that 12 weeks is not going to be enough, then it is advisable to let the employer know that as soon as possible. Rather than waiting one day before the end of the 12 weeks or even one week before the end of the 12 weeks that the employer needs some leave time here and the employee needs it, too. One of the worst things for everybody can be where there is this kind of time crunch because the request for extension of leave came in very late. Now, are there situations where it wasn't known until very late, sure? But, oftentimes, it is known and I do think it's advisable to let the employer know, I was hoping it would only be 12 weeks, unfortunately, it doesn't look that way. I'm happy to work with you. I can get my healthcare provider to provide information. You're standing by and you want to work with the employer. Now, I sometimes think that the employees need to get guidance from the employer. Again, employers can't expect employees to be mind readers. What is it that the employer wants to know? When I get the question from employees? Should I start identifying major life activities and why it's substantially limiting and mitigating measures and if there are people listening who are going, I don't know what these terms are, we need a different program for you to catch you up on the definition of disability. But, the thing is, for employees to start bringing in information that an employer may not need or may not want, is a waste of time.
And so to the extent that employers with a certain amount of information, I think to the most important, is about how much more leave. Why, what's going into deciding how much more leave is it a firm date or are there variables that could impact when the leave will no longer be needed. Sure, if that's something you can, you know, at least get a certain amount of that to present to an employer, I think that's helpful. But, again, employers remembering this process is for you as an employer to learn. What is it you need to learn? What is it you need to know? I think it usually works better for everyone, frankly, where the employer thinks about the questions that need answered. And generally, that should start with the employee, a discussion, a conversation, with the employee. Sometimes, there are answers the employer gets there that, you know, employer decides, I don't need to hear from the healthcare provider. Or, it influences what information an employer wants from a healthcare provider. And you know, some things, the employee may cover sufficiently.
So, now, there are only, you know, instead of eight things, you know, six of them just got answered sufficiently by an employee leaving two areas where, no, it would be helpful to get the input of the healthcare provider. And one of the things that in listening to a lot of employers, and their concerns and where they have felt frustrated and it's on your slides, second bullet down. It's often about what is behind the estimate of when the person is due back at work? -- How did the healthcare provider come up with that date? What are the variables that might impact whether that date is written in stone, so to speak, or whether it change? A lot of times and I've been doing this for a very, very long time and dealt with all kinds of healthcare providers and leave and all kinds of contexts, it's not always easy for a healthcare provider to say with absolute and complete certainty, you know, Sharon will be out and she will be back on this particular day. Sure.
Sometimes they can do that. But, sometimes, especially if people are getting surgery, especially if its inpatient as opposed to outpatient. Certain kinds of treatment. I think chemo therapy, radiation, where, a lot of factors can influence how soon this particular employee can come back to work. Years ago, when I was getting a certain kind of surgery and the employer, rather, my doctor, was kind of, okay, what kind of note to write to the EEOC. And they said, you know, with this surgery, the standard should be about six weeks, Sharon, that you should be out. And when I was talking to the doctor I asked could it be less? Most of the time it won't, but yea several people got better in four or five weeks. Then you have the other end of the spectrum. People who did not respond as well and so, instead of six weeks, it was eight or nine weeks. Employers can't -- doctors can't always tell ahead of time how their patients are going to do, that most people fall in this kind of range and that kind of information can be helpful to employers. Again in my situation, it's going to take longer than six weeks, then for me to let my employer know that. Because they're not mind readers. Employers they don't know but again up front is an employer entitled before I even take a day of leave to start exploring what's the foundation for the doctor's estimate of how long I'm going to be out. Yes, that's part of that interactive process. Employers can ask about, can they change when the employee is due back. You can phrase it different ways but what I'm trying to suggest to employers and employees to be aware, they might get questions like this, these are all legitimate questions. Legitimate to help employers understand, how much leave, and reasons behind the leave, to be able to plan back in the workplace, to have a sense of if everything goes well, then hopefully the employee will be back by the due date, that they will fall in the broad average and hopefully it won't be one of the outliers where no, it takes longer. But, employers are entitled sometimes, employers put things down, a date or the week of or the latter half of this month or whatever way they want to phrase it. But, when that's the sole question you ask, then if there is a need for an extension, the employer, you can say, is caught off guard, but the employer didn't probe any deeper. And what I'm kind of spending time on right now is the ability of employers. If they think it through, to probe ahead of time to ask these kinds of questions and again for employees to cooperate with this process so that the employer has much more of a foundation to think about the leave request.
Next slide.
Still staying with our interactive process here. Remember on all sides, this is a process that can be seemingly concluded, but then need to be reinitiated and a common type of reinitiation when we're talking about leave is when there's a request for an extension. You think we've gone through this interactive process, got all the information, agreed on a certain aments of leave, and then, an employee comes back and requests an extension. And everything with the ADA, as I think most employers are aware, is that there is not an automatic end date or shut off date for this obligation to supply reasonable accommodation. This is unalike the FMLA. Don't reach a magic number. With FMLA, its 12 weeks, that's it, in a 12 month period. That doesn't exist. Ultimately, it's going to be the undue hardship standard. So, employers do need to be prepared to get a request for extension, to know how to handle it, again, if you have asked sufficient kinds of questions initially then you're building on that. Oh, doctor, you had indicated there were certain variables that might require an extension. Now you're asking for this extension. Is it all these variables? Certain variables that came into play? Again, what's the foundation for the latest estimate for when the employee will return? How reliable is it if the first estimate turned out to be inaccurate, then what makes this estimate more reliable? Are you saying that this is the last step or are there any variables now that could end up needing to be a request for the third extension. Again, thinking it through, designing these questions, employers are entitled to do this.
Next slide ,please one of the things that employers have potentially a bit of room to explore as part of this interactive process is whether there are other forms of accommodations that might be provided other leave or additional leave. Now, as a slide said, this is a bit of a gray area in the law. The statute regulations don't go into detail about any of this and we really don't have any definitive Court cases on all of this but certainly what I can tell you which isn't gray is where the EEOC is coming down. And that is that that the general matter, the EEOC's position is that the employers cannot choose leave over accommodations that will permit people to keep working or to come back to come back to work. And where those accommodations will not cause the employee undue hardship. We find some employers for whatever reason, we'd rather keep you on leave. Don't come back. We certainly see this for employers that implement what’s often called 100 percent healed policy, where somebody has to be 100 percent healed, you have to be fully back to the way you were before surgery, treatments, or flare-ups, medical condition. For these employers they look at it as request for accommodation to work, to return to work as oh, you can't be 100 percent healed or think about doctor's notes that list certain restrictions. That’s another way. You're not 100 percent if your doctor is saying you have certain work restrictions.
The EEOC's view is the ADA employment provisions are all about to the greatest extent possible helping people to be able to work. Enabling people to work. And if somebody can satisfactorily without causing a direct threat, that very high threshold to show health or safety risk. If people can safely and competently return to work with a reasonable accommodation. In that instance the EEOC says, employers need to do that. That employers can't say, oh, all accommodations are equal and we're choosing leave instead. EEOC has been challenging employers that do that. Again, sometimes people are not ready to come back to work. Sometimes people are posing a direct threat and there's no accommodation that will eliminate that high risk or there's no accommodation that can competently or adequately perform one or more essential functions yet. They do need more time for leave or more time to recuperate, or what have you. Well, then we're not talking about two equally effective accommodations. Sometimes leave is the most effective or only effective accommodation. But, employers need to be aware sometimes there are ways for people to return to work and so if you have an employee who say, hey, I'm ready to come back. But, yeah, I need an accommodation. Or employers proactively can raise that issue. Doctors are not experts on reasonable accommodations.
One of these days, someone is going to tell me I'm wrong but I always when I check these things out. Medical schools do not have courses on the topics of reasonable accommodations. So, by all means, correct me if there's a medical school out there that's finally done it. I don't have a problem with employers asking doctors about accommodation possibilities, but, that's not necessarily their expertise. They can put out certain restrictions. But, it doesn't mean that they know about accommodations. So, employers may need to research with other sources like the job accommodation network, like the ADA center, disability organizations, and all kinds of people standing by to try and help identify possible accommodations. But, you want to kind of open the door to that and see if that is possible.
Next slide. Important to remember under the ADA that you can't sort of give with one hand and take away with the other. By which we mean, you can't give leave as an accommodation and then in effect punish the employee for having used it. For example, in performance reviews. We are not when we are talking about minimal leave but where people have been off for longer period of time and that can impact how one does a performance review, that’s a real issue. But, you cannot effectively punish people for having used leave as a reasonable accommodation. Employers need be aware of this and need to think about this, think about what can we, to if we can't really give a full year's assessment because somebody was out. Sometimes for most of the 12 month period or certainly more than half of the 12 month employees. It is one thing to kind of note, that it prevents the same kind of assessment you can do for employees. They took their three week or two week vacation, but otherwise, they worked a full year. Yeah, you can note that there was leave and that prevents the same kind of comprehensive assessment but you cannot kind of punish people. And that it can be tricky at times I understand that. Some of that we can talk about later if that is an issue but you have to be careful with that.
Next slide. Ongoing back, again, just a bit, on this whole extension of leave, where this becomes perhaps of more concern are employers that have maximum leave policies. Where the employer says we will give you this much and absolutely no more. And it varies the amount of time, also employers will tie their maximum leave policies to the FMLA, to the 12 weeks. And if an employee hits that 12 weeks, you've exhausted your FMLA, either you come back to work or you're terminated. Other employers may go beyond the FMLA's 12 weeks. Maybe they do six months or eight months. We have some very generous employers that might do one year. But, they specify, this is it. That's our maximum amount, hence the name, maximum leave policies, and they don't allow for, you know, even if it was one extra day. No, we don't give one extra day. Unfortunately, the ADA just isn't written that way.
As a lot of people are aware, this has been a big focus for the EEOC, especially in our litigation program, it has been. And the idea here isn't that there isn't a point where employers can say enough is enough. But, with the ADA, enough is enough is when you can show undue hardship. And picking a number, even where it's an employer who is giving 12 months, it's an awful lot of leave, very generous. A lot of time for an employer to not have an employee available. And yet, I always come up with the example, that person who took 12 months needed three more days. Assume for a moment, it's almost three days. There will be no extension. It's written in stone. Three days. I won't use the word never with the ADA so maybe there's going to be an employer with a 12 month leave program and somebody asks for three days as a reasonable accommodation and its undue hardship. Maybe an employer can show it. I don’t think it's going to be a rarity. I don't think most employers can show those three additional days will cause you an undue hardship. Three months, now we're in a different situation all together. I think a lot of employers can take that 12 months they haven't been there, the impact of that. Now you add on three more months. I think an awful lot of employers, maybe most if not all would have a little problem showing undue hardship. Again, there might be exceptions but again, I think a lot of employers that total of 15 months out of a job can now show undue hardship but not necessarily three days so instead, it's the wear ADA is structured that you, an employer is well advised to go through this process.
Of the safe thing to do with these maximum leave policies is to build in just a little bit of wiggle room. All you have to do is amend it with one or maybe two sentences to the effect that at the company's discretion, it may, on a case by case basis, consider and provide something beyond whatever you’re maximum is. Twelve weeks, six months, one year. You could reference the ADA if you want to reference it again. ADA is micromanaging this, so, there are not specific words that have to be used here but certainly getting across that it's the employer's discretion. The case by case. You're not guaranteeing anybody up front. The reason to amend these policies is because if you don't, the risk is whoever implements them may well read it literally. We come across this all the time employers who have had these policies for a long time. Maybe you did some ADA training a dozen years ago, but you have turnover. You have new people who are implementing such policies. They weren't there a dozen years ago. They never attended your ADA training and so they read the words. You know, we are giving X amount of leave and no more and if you don't return, you're fired. They're going to fire people. Next thing employer know the employer gets a letter from the EEOC. Word to the wise, you might want to amend them.
Next slide is reminding us this is all about an individualized assessment. That's the principle of one of the key principles behind the ADA's employment provision, individualized assessment. Individualized assessment here about undue hardship. An assessment about whether or when this person really can economy back to work. So, always, you really need to, again, training issue. Who is going to conduct this kind of assessment?
Next slide, a lot of this, you know, computers. We turn it over to the computers. They spit out these letters without thinking. They're form had letters. They're programmed to put somebody's name in it but that's it. It's not an individualized assessment. But, if you're going to think about extending your maximum leave policies, you also want to make sure these letters that are automatically generated by the computer also get modified a bit. Warning people, you know, you're within four weeks of the end of your designated leave. If you know or believe you're going to need more leave, you need to contact and list. Who do you contact? Give the e-mail address or the phone number or whatever it is. We need to hear from you. You know, if there's a question you want to ask their doctor. You want to signal that the employers can help you put this together where they're really not individualized. These letters can help you or can hurt you as an employer where there really not individualized. They're not kind of alerting employees that we really need to start working with you here? Remember, sometimes people are ready to come back to work. Their doctors want them to come back to work but they do need accommodation. Again, employers, why these letters that are being generated, can put something in there. You know, if you're ready to come back to work but there are thing that's we as an employer could do for you to help you to come back to work sooner rather than later. Again, who do you contact? Maybe it's their supervisor. Maybe it's somebody else but again you want to kind of hear as soon as possible whether there are accommodations to enable people to come back to work. Not uncommon, especially for people who are out for a long period of time, one of the things their doctors will recommend is not to hit the ground running, start full-time but rather to be kind of gradually coming back to work and again, if that's what the person needs and you know, you can start getting them to work on some things, maybe not full-time. But, again, not uncommon situation, employers need to, unless they can show undue hardship, work with that. That people get started with work. A lot of types of things people may be able to, certain jobs, telework a bit to start that process of coming back to work. Again, something else that employers can explore.
The next slide is trying to give you a jump start on the kinds of questions to ask about people who are ready to come back to work. Again, identifying accommodations. Why are they needed? How will they help? How will they help people to do certain job duties or get them back into a workplace?
Next slide, we've already kind of covered, so I'm not going to reiterate rate. Again, you'll all have time to go through this. But, just being careful, if you have 100 percent heal policies, you don't want EEOC knocking at your door. Reassignment. Important for employers not to overlook the accommodation of last resort. Sometimes, no matter the amount of leave, it doesn't work to the extent of allowing someone to come back to her original job. And so, again, employers need to be prepared to handle requests for, you know, yes, the healthcare provider could say, Sharon can come back but not in her original job. And now, starting to see if there is the possibility, and there wouldn't always be, of a reassignment. But, that's important not to just be solely focused on the original job. And as we finish up, undue hardship, I've mentioned it several times. But, what the last slide and this is before we go into questions, is in the context of leave, what are the kinds of issues as an employer to judge whether or not either the initial request for leave or a request for an extension of leave. What is it I want to be
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SHARON RENNERT
All right. Let me finish up because I want to get to people's questions. On undue hardship. Again, you're going to have these slides to look at your leisure but a couple of things to remember here. Number one, as I mentioned a bit earlier, in making the assessment you take into account the leave already extended and then, what's the additional impact from the request for an extension, okay? So, lots of times, when I'm working with employers, if I am asking them questions, they're able to articulate the impact, the negative impact, of leave already taken. But, I have to do it by asking questions. And, the slide is trying to get employers to sort of focus since I won't always be there to work with them on what to kind of you this about. And what to look at here. Are there constituencies that haven't been served? Are you behind in certain things? Have we exhausted the co-workers? Because here's the amount of hours of overtime they've had to do. Are there certain tasks that are so specialized that this employee isn't around and you know, if they're not going to be around, we need to get somebody who has that same specialization? It's not, you know, their co-workers can't hand it off to them. It’s going to be different. Every workplace, every job, but you really need to do again, that individualized assessment here. Remember in looking at possible return dates, it doesn't always, can't always be an exact date. Like, ok December 1st Sharon is returning to work, sometimes the best the healthcare provider can do is provide a range. For undue hardship purposes, you work with that. Let's say the range is Sharon could come back anywhere from December 1 to December 31. So, for undue hardship purpose, as an employer, I'll assume it's the last date. December 31. Now I'll do my undue hardship assessment. Great if Sharon returns earlier in the month. Even December 1. But, suppose it's not until December 31. You've got to work with what the healthcare provider is able to give you : but, you don't want it artificially insist, you know, doctor, you got to give me an exact date on the calendar. Sometimes that just is not medically appropriate to do. But, again, it doesn't mean you can't do an undue hardship assessment. All right, as we're now going to move to questions, let me just call your attention.
The next three slides are going to give you links to various EEOC publications which deal with the issue of leave. So, again, you can look at that. You can go online. You can get more information for any and all of these publications, and the very last slide, my contact information. Remember, all contact with me is confidential, I do not report to anybody else at EEOC who I talk to or email with, I'm here to try and assist. In but, right now, I can assist by letting you all p ask questions.
PETER BERG
All right. Thank you, Sharon, for those of you who didn't download the handouts prior to the assessment. When the archive is posted the handouts will be posted so they will be available. Howard, if you could give instructions on how our telephone participants can get in the queue to ask questions at this time, please.
OPERATOR
Yes, sir. Ladies and gentlemen, once again, as a reminder, to ask a question, you will need to press star then one on your telephone. To withdraw your questions, please press the pound key. Please stand by while we compile the Q&A roster.
PETER BERG
While you're waiting for that, Sharon, people have continued to submit your questions in the Q&A pod. We've had a number of those. Questions about documentation upon an employee returning from leave. Can an employer provide certain documentation or even a fitness for duty when someone is returning from leave?
SHARON RENNERT
Certainly employers are permitted under ADA and that's all we're going to deal with at the moment, ADA, to get some documentation, if their concern is, are you fit to come back? If it's simply doctor is releasing Sharon on this date yes you can do that but if you want to explore a bit further, whether it's about competency to do the job or if there's a reason to think there could be some health or safety issues, remember, with the ADA, employers have to have a reasonable belief behind either the questions they're asking or a fitness for duty exam. If EEOC, if I was taking time off suddenly wants to do fitness for duty exam when I come back. They're going to have a very hard time. I won't say impossible, but a hard time, I have a desk job. What is it they're concerned about? I don't did any kind of heavy lifting or a lot of walking, whatever. I'm not going to say without specific facts, they can't do it, as opposed to somebody who is in a physical labor job. And they were out for back issues or they had lifting restrictions. If that's what your essential functions are going to involve, then asking questions to make sure the person can competently or safely come back and even to do a fitness for duty exam then again, as long as the employer can tie it to the job duties, the type of leave they need, the reasons behind the leave they needed behind the kind of medical issue. The kind of treatment of kind or surgery, yes, there is room to do both those things.
PETER BERG
All right, excellent. Thank you, Sharon. And another question someone had regarding documentation. You had mentioned some employers that use third party vendors to take care of FMLA. And in the situation where the persons, the employ's FMLA is ending and it's that third party vendor that handles all of the documentation and now the employee is requesting leave as an accommodation. The question is, should the employer in that instance be going to their partner in that third party vendor to get documentation first before going to the employee to determine whether or not, you know, the employee has a disability.
SHARON RENNERT
I think absolutely. You never want to reinvent the wheel and unless there's something in the contract the employer has with the vendor that somehow that documentation solely and completely belongs to the vendor, it should be accessible to the employer. The employer has hired this vendor to do certain things on behalf of the employer so think should be able to access that information rather than making the employee start all over again. But, again, this is going to be a global issue so I think an employer right now should work this out with the vendor. What happens when, we want all the time and we are going to have people who want to transition. Finish the FMLA and then move to ADA and we need to make sure that some of the information the vendors have can be relevant to us. How are we going to get it in a timely way? Don't just do it each time. I kind of come up with a process so you can quickly get access to the information and then supplement as needed. Now we need to get additional things that the vendor doesn't have so again whoever is gown start working with the employee to get that information.
PETER BERG
Okay. Excellent. A specific question here related to the use of leave for an employee who is experiencing vision loss. Could leave be taken as an accommodation for that employee? For instance, to get training and using assistive technology or to get training in other skills of blindness?
SHARON RENNERT
Absolutely. Excellent, excellent question. Absolutely. The ADA does not take an overly narrow view of what is, leave can be used for. So, this great question, because it's a very good example that this person is asking. Absolutely, people with disabilities have to have certain kinds of training, assistive devices, service animals, not just people with vision loss. It could be somebody with hearing loss. Any number of disabilities where they're going to get a service animal and part of the training with the animal requires the presence of the individual so there's another way that leave as a form of reasonable accommodation. Absolutely. People getting prosthetic devices, another example where people may need time off so not just thinking about it in terms of being sick or getting surgery or certain medical treatments, but, no. Absolutely. That would all be encompassed by leave as a reasonable accommodation.
PETER BERG
And then a person added an additional example. Someone that uses a lift equip van, if the vehicle needs to be fixed.
SHARON RENNERT
Also. Wheelchairs that can come up. The accessible van. The wheelchairs. These are things that are very integral to helping individuals with disabilities to navigate the environment, what have you. But, yes, the concept of leave as an accommodation is broader than just thinking about it in terms of being too sick to come into work or getting surgery or chemo therapy or radiation. You don't want to be quite that narrow because the concept of accommodation is not that narrow.
PETER BERG
Right. Another, a specific question or example. The ADA talks about that applicants and employees with disabilities may be entitled to reasonable accommodation. This specific example an employee has been provided a job offer, has been given a start date, a start date for orientation but then because of a disability related need asks for a delay in the start date and that orientation. So, is that something an employee may be entitled to in that situation? Even before actually starting the job?.
SHARON RENNERT
They might be. The reasonable accommodation issue. To delay orientation but again, potential undue hardship. We are moving into holiday season. A lot of there still are brick and mortar stores for that matter even over the internet. There are businesses that are hiring because they're going to need a lot more workers for the holiday season so they might do an orientation so they extend the offer but the first thing you actually do, is your actually going to be in a call center or put out on the work room floor that's when someone says, I was supposed to start November 1. I can't start until December 15. I need to postpone for six weeks. I think any number of employers who are hiring for the holiday season, these are not going to be full-time jobs, are going to be able relatively easily to show undue hardship. We are hiring for this specific time period, for this purpose. On the other hand, is it the kind of thing I need, I can't come this date and it's an orientation period that's offered, again, I only need to postpone two weeks that your next orientation period is two months, again, if you can wait as an employer. Does it cause an undue hardship? It obviously sets back the time the person will start. Maybe yes, maybe no. But again, you want to do it on an individualized basis. So, depending on what the facts are, I can easily see undue hardship existing or not existing so yes you've got to consider the request don’t dismiss it out of hand be prepared to asses it and determine if there is an undue hardship.
PETER BERG
Okay. Someone asked if you could discuss like duty positions and return from leave. I think this was in relation to some of the 100 percent ready to return that you were discussing.
SHARON RENNERT
First of all, the ADA does not require employers to create light duty positions because remember part of the definition of being qualified is you have to be able to perform your essential functions with our or without accommodation so if somebody is saying, you know, I need to come back and I feed you to create a special job for me, though, because I can't do any of my essential functions. No, you don't have to create light duty positions. The EEOC took the position years ago, still the EEOC position, if an employer has created a number of light duty positions, and generally, this is in the worker's compensation context, but, nonetheless, they've created light duty positions, then even where it's not a work related injury or illness, if there's a vacant position at the moment, then the EEOC's position has been that a person with a disability, even where it's not work related, has to potentially be put in that vacant position. But, again, employers do not have to create light duty positions. But, I always draw distinction, between something that is really about creating or what we have already created truly light duty position as opposed to kind of the work hardening idea, something a little more informal. Doctor says, Sharon is ready to come back but not full-time. Maybe there's one, like, again, years ago. I had travel restrictions and I do a fair amount of travel, but the doctor said, it really was looking at the trial aspect. EEOC recognized essential function. Another couple of months where people have been able to cover what's necessary. There was not undue hardship so meanwhile, doing everything else. Again, not a long term excusing of an essential function. EEOC wanted me back at work. Other things I can do. It wasn't a light duty position, it was my position, but nonetheless with a little less flexibility. Again, one of the things people can find either good or bad about the ADA, there is a lot of flexibility. Not really micromanaging or dictating with a lot of this stuff. Which can be frustrating where we all would like some solid answers than you’re going to get from the ADA, but on the other hand, there is that flexibility, again, with the interactive process where you have enough information to know what you're getting that as an employer to see if you can work it so I want this person back, I'll get what I can out of them and in a few weeks, we're going to gradually get them fully back but at least I've got them doing work again. That's possible to do here.
PETER BERG
All right we'll get one last question. Someone wanted to know talking about punishing an employee for leave. A sales person that misses a couple months of time and then the employer bases the sales bonus a 12-month calendar which can include two months as opposed to basing it or prorating it on the time the sales person was actually out working.
SHARON RENNERT
The general view of EEOC has been about prorating. As again, people have been out. You sort of ignore that. Or that you somehow artificially inflate as if they have been there 12 months. If they were there for 10 months, how much did they do. And to recognize it. Again, as the slide says, it's a gray area. There just hasn't been a lot about how exactly to do it. It can play out very differently depending on specific facts, I wish I can give you again, a very specific answer and I just cannot. But generally the EEOC they prorate you have to acknowledge somebody was there ten months, not 12. Look at how they did and if in that ten months it's the equivalent, of how much somebody you know would be getting a bonus after 12 months should we consider. Again, it may be a prorated bonus. You're not going to be as eligible as if you were there 12 months but again, if you really did tremendously well in those ten months, there's still something there's still something to get. But, this tends to be a very specific fact. How they kind of play out so that's about as good as I can give you at the moment.
PETER BERG
That is great. Unfortunately, we are at the bottom of the hour so we don't have time for any more questions. Quick reminder that our December ADA conference session will take place on a special day that is going to be December 10th because of the holidays. So, please join us on a special session Tuesday December the tenth where we will look at the air carrier access act and travelers with service animals. We will have this representative from the U.S. department of transportation talking about DOTs noticed on service animals. You can get information by visiting ADA-audio.org to register that session. Want to thank Sharon Rennert for joining us today not just 90min a little over 90 plus min. But, also her time always a pleasure having Sharon having. As a reminder, today's session has been recorded. Archive will be available, audio archive will be available within 24 hours with the handouts, get an edited transcript up within a couple of weeks to go along with the session again, that will be available at ADA-audio.org.If you have questions about the audio conference series, you can give us a call at 877-232-1990.Please take the time to complete the session evaluation that helps us with planning for future sessions so we appreciate your time in doing that. Thanks to everyone for joining us today. Hope that the remainder of your Tuesday goes well and I look forward to having you join us for future sessions. Thank you, and take care.
Note:
Communication Access Realtime Translation (CART), captioning, and/or live transcription are provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.