ADA accommodations go beyond cubicle, ergonomic adjustmentsReprints
Employers are used to thinking of ergonomic accommodations under the Americans with Disabilities Act, but an ADA leave of absence is also considered an accommodation. Kevin Curry, national practice leader and senior vice president of sales and marketing at Reed Group Ltd., offers guidance for firms to evaluate employee requests for such leave, as well as how to comply with their obligations under the law.
The Americans with Disabilities Act requires employers to provide reasonable accommodations to enable employees with physical or mental disabilities to perform the essential functions of their jobs.
Usually when employers think of an accommodation, it's in the context of ergonomic equipment or adjustments to an employee's workspace. Workplace accommodations, however, represent only one type of accommodation. A leave of absence also can be an accommodation.
An ADA “absence” is time off granted to allow an employee with a disability to return to work. This absence is on top of any other job-protected leave that's already exhausted.
Penalties can be severe for employers who don't properly consider leave as an accommodation before terminating an employee who can't return from work after an absence, but the guidance from the U.S. Equal Employment Opportunity Commission and various court decisions is vague. As a result, many employers are uncertain of their obligations under the law.
The EEOC and the courts haven't yet provided an effective accommodation evaluation process for employers to follow. Employers need to use repeatable standards for evaluating whether an accommodation would be ADA-compliant. Here are three simple accommodation tests that can be applied to each employee absence during the ADA interactive process:
Accommodation test 1: Is the requested leave of absence a “reasonable” accommodation?
An employer must engage in the interactive process at the exhaustion of a job-protected absence to determine if additional leave can be offered as a reasonable accommodation.
According to the EEOC, a reasonable accommodation is simply one that is plausible or appears feasible. To determine feasibility, employers must consider a number of factors, including the length of the leave, frequency and unpredictability of any intermittent absences, and the flexibility of the employee's scheduled return-to-work date.
Unfortunately, there are very few solid rules when it comes to determining whether leave is a reasonable accommodation, or for how long a leave may last and still be considered reasonable.
Several cases have suggested two guidelines that employers may follow:
1. An employer can expect an employee to provide an estimated return to work date. Return to work in this case means the resumption of the employee's essential duties. Without an end date, an employer is not expected to be able to determine whether the accommodation is reasonable.
2. The leave request must assure an employer that an employee can perform the essential functions of his or her position in the “near future.” Because near future is not defined, employers are advised to use the three accommodation tests as a guide.
As employers work through this stage of the interactive process, remember that the EEOC considers it reasonable for an employer to modify its employment policies to accommodate an employee's impairment. This may include modifying “no-fault” or other leave or attendance policies so employees aren't terminated automatically, if they cannot return to work after the period defined in the employer's leave policy. In fact, the failure to do so has resulted in multimillion-dollar consent decrees.
The good news is the EEOC doesn't expect employers to offer paid leave as a reasonable accommodation. An important point, though, is that an employer cannot discriminate or treat a disabled employee differently than other employees. So if the employer offers paid leave or other benefits during leave to other similar employees, then those same leaves or benefits need to be extended to the disabled employee.
Allowing the employee to use paid leave accrued under vacation or paid time off plans during a leave is a reasonable accommodation. If the employee's accrued paid time off is not sufficient to cover the entire leave requested, it's perfectly fine for the remainder of the leave to be unpaid.
Accommodation test 2: Is the leave of absence accommodation effective?
The accommodation must enable the employee to perform the essential functions of his or her job. An employer must decide whether leave is an effective accommodation by considering several factors:
• The nature of the employee's disability and limitations.
• The anticipated duration of the leave.
• The employee's position, including essential and marginal functions.
• What purpose the leave will serve to enable an employee to return to work to perform his or her essential functions.
• The likelihood that the employee will be able to perform his or her essential functions at the end of the leave.
• The success or failure of past accommodations attempted for the employee.
• Other accommodations such as ergonomic adjustments, schedule changes, reasonable changes to job descriptions for an employee.
The answers to most of these questions are straightforward, but need to be considered as a whole to determine whether or not the accommodation can be considered effective.
Accommodation test 3: Does the requested leave impose an undue hardship on the employer or its operations?
The EEOC defines undue hardship as a “significant difficulty or expense” resulting from a potential accommodation.
Significant financial difficulty refers to the cost of providing the accommodation. Significant operational difficulty means an accommodation that's unduly extensive, substantial or disruptive, or that would fundamentally alter the nature of the business operation. Employers also have to take into account their own size and ability to absorb the effect of an employee accommodation.
No EEOC rules specify how long a leave of absence needs to be before it constitutes an undue hardship. As with the other accommodation tests, employers need to review each employee's situation — and the potential effect of each accommodation option — individually during the interactive process.
When considering whether the leave accommodation is an undue hardship, it's essential for an employer to collect and document facts and evidence, and to be specific and systematic with the undue-hardship analysis.
Leaves of absence that are erratic, unscheduled, indefinite and/or unpredictable are not considered reasonable.
Employers can find themselves in a difficult spot when it comes to leave accommodations under the ADA. On the one hand, the rules governing leave accommodations are sparse and sometimes confusing. On the other hand, the EEOC is actively investigating employers who are not in compliance with leave accommodation rules — and the penalties for getting it wrong can be punishing.
The three accommodation tests can help employers stay on the right side of the law — but remember, the answers uncovered may be subjective. Work through the process systematically and always document, document, document.
Kevin Curry is national practice leader and senior vice president of sales and marketing at the Reed Group Ltd. He is a recognized expert in absence and disability management. He can be reached at KCurry@reedgroup.com and 303-407-0690.