The EEOC and employers faced off on how expansive organizations must be in providing leave to disabled workers during a hearing earlier this month. The EEOC says companies must be flexible in going beyond their attendance policies, but employers wonder how much leave is enough in the EEOC's eyes.
How long must an employer continue to give time off to a disabled employee?
Employers and the U.S. Equal Employment Commission went head to head on that thorny question earlier this month during a hearing on providing leave under the Americans With Disabilities Act.
The EEOC maintains that companies must be flexible in providing leave to disabled workers whenever they ask for it, even if it means going beyond their "no-fault attendance" policies. However, businesses object that, under the ADA, there is no limit to the number of extensions they must provide, and that it is too difficult to prove undue hardship.
"Managing situations where employees need leave for medical conditions is one of the most vexing issues for both employers and employees," said EEOC Commissioner Victoria Lipnic on June 8. "Today's meeting should educate employers about complying with the law and educate us at the EEOC about making these difficult situations more manageable."
Leave for the disabled has become more controversial after the ADA was amended in 2008 to expand the definition of disability. Since then, the EEOC has anticipated many more requests for leave as a reasonable accommodation, and has beefed up enforcement.
And the commission showed it meant business by filing two lawsuits, alleging major corporations had inflexible leave policies and had terminated employees before offering them reasonable accommodations. The suits ended in consent decrees and huge monetary settlements: In 2009, Sears, Roebuck and Co. agreed to pay $6.2 million, while in 2010, Supervalu Inc., American Drug Stores, and Jewel Food Stores (Jewel-Osco) agreed to pay $3.2 million.
"Almost all courts have said leave is a reasonable accommodation. Where it starts to break down is what type of leave and how long," says Michael Peterson, associate general counsel and director of labor and employment policy for the HR Policy Association in Washington.
"Some courts have said you have to allow the employee to request additional leave to comply with the ADA. ... The EEOC position is [that] an employer who doesn't allow an employee to request additional leave is, per se, in violation," he says.
The debate during the hearing centered on how flexible a company must be in granting continued leave extensions beyond their no-fault attendance policies. The ADA is clear that employers with 15 employees or more must make reasonable accommodations, even beyond the company leave policy, unless they can prove undue hardship, experts say.
" 'No-fault' leave policies, under which an employee is automatically terminated after using a certain amount of leave, must be modified as a reasonable accommodation, absent undue hardship, if an employee with a disability needs additional leave," testified Christopher Kuczynski, EEOC assistant legal counsel in charge of ADA issues.
But employer representatives insist there must be a limit to how many extensions they can offer, and how long they have to hold a job open.
The EEOC is "very unclear as to ... how much time is reasonable," says Leslie Silverman, former EEOC vice chair, and now a partner at Proskauer in Washington.
It's not that corporate no-fault attendance policies "per se" violate the ADA, says Silverman. But the EEOC believes an employer should engage in an "interactive process" with disabled employees to discuss options, rather than rigidly enforcing their policy.
"The EEOC is saying, 'This is not one-size-fits-all. ... It's the employer's responsibility before the leave is over, to go and say, How much will you need?' " says Silverman.
But that is problematic for companies, especially larger ones, says attorney Ellen McLaughlin, a partner with Seyfarth Shaw in Chicago, who also testified during the hearing.
The EEOC assumes larger companies can afford to hire temps and have the staff to pick up the work, says McLaughlin.
"To fill the position, you have to prove it's an undue hardship to leave it open. ... It's difficult to do for larger employers because it's unlikely you could assert the cost is an undue hardship, so you have to show it affects your business operations," she says.
Another problem, say employers, is there's no defined limit to the number of times an employer must agree to an extension.
"How many extensions do you have to grant [before] there's no expectation they'll ever come back? What does indefinite mean?" says McLaughlin.
Certainly, there are always going to be "sympathetic" cases where the employee has complications -- after surgery, for example -- and needs an extension, says Silverman.
On the other hand, she says, the EEOC is "unclear" about limits. "The only time the EEOC says you don't have to accommodate is when it's clear they're not coming back.
"Our position is, a lot of these cases are arising in situations where the employer has very generous no-fault policies," says Peterson. "For us, we look at it and say, 'Here's an employer allowing a person to be out a year, and you're still suing them?' "
One major bone of contention is how important actual "attendance" is in determining whether to continue to grant leave.
Employers argue that attendance is an essential function of a job; if a disabled worker is not attending work, it should constitute an undue hardship.
"I'd say if they're not there," they're not doing the job, says McLaughlin.
"The EEOC never said it's not important to come to work. We just said it's not an essential function," says Kuczynski.
Silverman says: "The EEOC is saying, 'You're not entirely exempting a [disabled] person from being at work. You're just extending their leave. ... It's a three-month leave, what's another three weeks?' "
The one thing that all parties agreed on during the June 8 hearing was the need to combine various EEOC "guidance" documents in one place, and to provide examples of hardship cases.
In the meantime, HR executives are advised to be aware of the issue and review their policies.
"[HR executives] need to look at their no-fault attendance policy and how it's being applied," says Peterson. "If disabled persons can request additional leave beyond what's stated in the no-fault policy and the employer would consider the requested accommodation, they would be in compliance. ... The EEOC is saying, 'If an employer won't consider additional leave, we'll come after you.' "
McLaughlin advises employers to "consider" extending additional leave to an employee rather than terminating the employee when the individual reaches the maximum amount of leave allowed.
Also, she says, if you use a third-party administrator for benefits or leave administration, make sure that they pass along information about the employee's ability to work.