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Vague guidelines that require employers to consider leave requests under the Americans with Disabilities Act case-by-case are causing considerable problems for employers, who are trying to comply with the law while still effectively running their businesses.
Compounding the issue is the Equal Employment Opportunity Commission's aggressive pursuit of litigation in this area. The EEOC, which held a public hearing on the issue in June, is expected to publish clarifying guidelines later this year.
Employers are required to engage in an interactive dialogue with workers before reaching decisions on reasonable accommodations for ADA leave. While employers are not obligated to approve requests for indefinite leaves, there are no clear guidelines as to how firms can balance employee requests while avoiding undue hardship to their businesses, which observers say is not demanded by the law. A particular problem is incremental requests, where workers continue to ask for more time off.
“The challenge to employers is where to draw the line,” said Peter J. Petesch, a shareholder with law firm Littler Mendelson P.C. in Washington.
“Despite the many documents that EEOC has issued on this subject, people are still getting it wrong,” EEOC Commissioner Stuart J. Ishimaru said during the June hearing. “Perhaps that's part of the problem—that there are too many pieces, too much of a hodgepodge. And maybe there are times when our guidance could have been clearer.”
In July, New York-based Verizon Communications Inc. agreed to pay $20 million to resolve an EEOC lawsuit involving the company's “no-fault” attendance plans, which the agency said did not provide reasonable accommodations for employees with disabilities.
An ADA case brought against Hoffman Estates, Ill.-based Sears Roebuck & Co., where the EEOC accused the retailer of having an inflexible workers compensation leave exhaustion policy, resulted in a $6.2 million settlement in 2009. Another ADA leave case against a unit of Minneapolis-based SuperValu Inc. resulted in a $3.2 million settlement last year.
Observers recommend that employers reconsider leave policies setting limits on the period of time employees can take off (see related story).
Jonathan T. Hyman, a partner with law firm Kohrman Jackson & Krantz P.L.L. in Cleveland, said employers have two big misconceptions when it comes to ADA leave: One is that they do not have to offer more than the 12 weeks provided under the Family and Medical Leave Act, and the second is that they can have “hard caps” that limit leaves of absences to specific days.
The EEOC has taken the position that hard-cap disability leave policies violate the ADA because they ignore “the interactive dialogue employers are supposed to have about a reasonable accommodation,” Mr. Hyman said.
“The employer doesn't know where it stands,” said Robin E. Shea, a partner with Constangy, Brooks & Smith L.L.P. in Winston-Salem, N.C. Before the Obama administration and “under old interpretations of the ADA, it was legal for employers to have a cutoff if somebody was out for certain predetermined periods of time. It was usually safe to let them go when they reached that limit,” she said.
Now, though, “the EEOC has made it clear that automatic terminations are never going to be all right and, at the very least, the employer is going to have to make one last attempt at reasonable accommodation, which includes assignment to another vacant position, before cutting a person off, even if the person has been out of work for 12 months or 18 months or even two years,” Ms. Shea said.
Susan K. Lessack, a partner with law firm Pepper Hamilton L.L.P. in Berwyn, Pa., said: “Everyone understands if someone is entitled to FMLA leave, they get the 12 weeks” After that, though, it is very common to have situations where the employee's physician says they need more time, “and the employer's faced with wanting to comply with its legal obligations under the ADA,” but must also consider the company's business needs.
Stacie L. Caraway, a member of law firm Miller & Martin P.L.L.C. in Chattanooga, Tenn., said that because the ADA “doesn't set any floor or ceiling” as to how long employees can stay out on leave, “that can vary for the exact same employer over time for different positions and different employees.”
Complicating the issue is that under the Americans with Disabilities Act Amendments Act, for which the EEOC released final rules in April, there are many more conditions under which employees are regarded as disabled.
Those amendments are frustrating to employers, said Russell D. Cawyer, a partner with law firm Kelly, Hart & Hallman L.L.P. in Fort Worth, Texas. “There are just so many more people who are now entitled to accommodation and that's where it's going to, I think, burden employers and businesses.”
Employers should reconsider any policies they have that call for set periods of leave in light of the Equal Employment Opportunity Commission's aggressive pursuit of litigation in accommodating workers who take time off under the Americans with Disabilities Act, observers say.