At the 2016 DMEC Annual Conference, Richard Mrizek with the U.S. EEOC office in Chicago and Matt Morris, VP of FMLA Resources with ComPsych, discussed issues surrounding ADA compliance and EEOC enforcement actions.
In 2015, there was a record number of ADA activity before the EEOC. This included almost 27,000 complaints – over 30% of which involved ADA issues. EEOC enforcement actions generated over $128 million in benefits garnered. This aggressive enforcement from EEOC is expected to continue as they have issued statements promising continued “vigorous enforcement.”
The discussion broke ADA compliance into five areas:
The EEOC expects that employers “should treat the employee requesting leave under ADA the same as they treat an employee who request leave unrelated to disability.” The EEOC has also indicated that an employer’s ADA policies must be flexible and allow for unpaid leave beyond any paid leave of absence, including workers’ compensation.
One example discussed is that many employers have auto-termination policies set up under FMLA that indicate, if the employee is away from the workplace for more than an established period of time, their employment is terminated. EEOC considers such programs to be inflexible. The courts have been very inconsistent when it comes to ruling whether an employer’s ADA compliance efforts are “reasonable”. Court decisions have even been mixed on the basic question on whether “regular attendance” is an essential function of the job.
Identifying ADA Requests
Any time an employee requests leave of absence or an adjustment to their job duties related to a medical condition, that triggers the interactive process under ADA. Too often, the employer focuses on the request under FMLA but fails to consider ADA implications. Courts have found that both pregnancy and a temporary medical condition may qualify for ADA consideration. Currently, obesity is not considered an ADA disability unless it results from an underlying psychiatric disorder, but that may change in the future.
Properly Engaging in the Interactive Process
Employers need to remember that the interactive process may continue after an initial request, even if that request is granted. If an exact return date is not specified, then the interactive process remains open. The EEOC has stated that reassignment to a new job is a reasonable accommodation when the disability prevents the employee from performing the essential functions of their current job. Employers are expected to place the worker in a vacant position for which they are qualified without requiring them to compete with other applicants. This goes against the policy of many employers who were requiring employees who exhausted their FMLA leave to reapply for positions.
In order to be fully engaged in the interactive process as required by ADA, employers must have a meaningful dialogue and communicate in good faith with the worker. The process must also be flexible.
The speakers discussed several issues around what is a reasonable accommodation:
- The EEOC has indicated that telecommuting is a reasonable accommodation that must be considered, but courts have been mixed on their reaction to this.
- Courts have ruled that refusing overtime is not a reasonable accommodation if overtime is an essential function of the job.
- The courts have also ruled that employers do not need to change the essential functions of a job as part of any reasonable accommodation. This stresses the importance of having very clear job descriptions as anything that is vague will usually be interpreted in favor of the employee.
- Maximum leave policies are allowed, but the employer has to show that leave beyond the maximum established would create an “undue hardship” in order for that to be enforceable.
- The EEOC has indicated that indefinite leave is an undue hardship and does not have to be accommodated. The employee requesting leave needs to specify a return date.
Return to Work
Policies that require an employee to be “100%” before returning to work are considered a violation of ADA unless the employer can show that providing any needed accommodations would cause undue hardship. Some courts have allowed employers to require “fitness for duty” examinations to ensure the worker can perform the essential functions of the job.
The bottom line is that the EEOC expects employers to make every reasonable effort to return employees to the workplace. The focus of the employer has to be accommodation, not termination.