We all know how important workplace flexibility has become for employees as a way to improve work-life balance. But, managing situations where employees need leave, especially for medical conditions, is one of the most frustrating issues for both employers and employees.
Among the key provisions, the #ADA requires employers to:
1. Provide reasonable accommodations when necessary so that people with #disabilities can perform the essential functions of their jobs, unless doing so would constitute an undue hardship to the employer. Leaves of absence—including those beyond an employer’s permitted number of days off—can constitute reasonable accommodations.
2. Modify policies, practices & procedures unless such changes would fundamentally alter the nature of the program or service. Undue hardship is not a defense in this case.
Therefore, any type of “automatic” policy is a red flag. Think about it…inflexible leave policies-- fault leave or fixed-leave policies--restrict potential reasonable accommodations. These must be modified as a reasonable accommodation, absent undue hardship, if an employee with a #disability needs additional leave.
While no-fault leave or fixed-leave policies don’t automatically violate the ADA, employers need to be prepared to adapt these policies in order to provide additional leave as reasonable accommodation. While many requests for leave can be handled under an employer’s regular leave policies, reasonable accommodation issues arise when an employer won’t ordinarily allow the leave -- for example, by having “no fault” leave policies.
Case in point…
In a recent #EEOC lawsuit, a medical practice representative, whose duties included answering phone calls and scheduling appointments, was unable to work for two weeks while undergoing medical treatment for her disability, Crohn's disease, including two emergency room visits and a hospitalization. The EEOC said that when she requested an additional day of unpaid leave as a reasonable accommodation, the medical practice instead terminated her. The EEOC said that University of Maryland Faculty Physicians, Inc.'s lateness and attendance policy violated the ADA because it didn’t provide for exceptions or modifications to the attendance policy as a reasonable accommodation for individuals with disabilities.
In addition to the $92,500 in monetary relief to the employee, the company must revise its lateness and absenteeism policy to permit reasonable accommodations for employees with disabilities. The medical practice is required to train all supervisory, managerial and human resources personnel on the ADA and post a notice regarding the resolution of the lawsuit at its facilities.
Do you want the added burden to report to the EEOC on how your company handles all requests for leave as a reasonable accommodation and the way in which you internally resolve any complaints of disability discrimination?
If you have a fixed-leave policy, consider including a statement in the policy that an employee may be eligible for leave as a reasonable accommodation, even if the employee is not eligible for or has exhausted the company-provided leave. Eliminate all statements from leave and attendance policies requiring that an employee must be able to return to full duty, without restrictions, in order to return to work. Remember, engage in the interactive process and evaluate each medical leave request individually. There is no one-size-fits-all approach when it comes to minimizing liability.
This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.