Category Archives: Accommodation

Court Holds Extended Leave Is Not An Accommodation Under the ADA

fmlaIn a very employer-friendly decision, the 7th Circuit Court of Appeals held that the Americans with Disabilities Act (ADA) does not give employees the right to take an extended leave of absence.

In Severson v. Heartland Woodcraft, Inc., the 7th court considered a discrimination claim brought by an employee who was fired when his 12 weeks of FMLA-protected leave for a pre-existing back condition expired and he was still unable to return to work. The employee claimed that his firing violated the Americans with ADA because the “at least two additional months” that he needed to recover from surgery after his FMLA leave ended was a “reasonable accommodation.” The 7th Circuit strongly disagreed, holding that the employee’s proposed accommodation of at least two additional months of leave was not reasonable. According to the Court, the ADA “is an anti-discrimination statute, not a medical leave entitlement.”

This ruling is contrary to the position taken by the Equal Employment Opportunity Commission (EEOC) that multi-month leaves of absences may be required under the ADA. According the EEOC, leave or extended leave as a job accommodation should be considered when a worker’s doctor is able to estimate a specific endpoint for the leave, the employee asks for the leave ahead of time, and the leave will likely enable the employee to fully perform the job afterward.

In light of the decision in Severson, employers (especially those in Illinois, Indiana and Wisconsin) can feel more comfortable refusing requests for multi-month and indefinite leave requests under the ADA. And while the language in Severson should apply to shorter leaves as well, its holding is limited to extended leaves, so employers still need to consider whether an employee’s request for a shorter leave (either after the expiration of an FMLA leave or if the employee did not qualify under the FMLA) would be a reasonable accommodation.

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EEOC Speaks On Mental Health

EEOC LOGOThe Equal Employment Opportunity Commission (EEOC) recently published an informal publication outlining the rights of employees who suffer from depression, post-traumatic stress disorder (PTSD), and other mental health conditions under the Americans with Disabilities Act (ADA). Although nothing new per se, the publication serves as a great reminder as to the rights of employees with mental health conditions. The guidance addresses the following topics:

Discrimination. An employer may not discriminate against an employee — which includes firing, rejecting for a job or promotion, and forcing to take leave — simply because he or she has a covered mental health condition or has asked for a reasonable accommodation.

Privacy/Confidentiality. An employer may only ask medical questions (including questions about mental health) in the following situations:

  • When an employee asks for a reasonable accommodation.
  • After it has made a job offer, but before employment begins, as long as everyone entering the same job category is asked the same questions.
  • When it is engaging in affirmative action for people with disabilities, in which case an employee may choose whether to respond.
  • On the job, when there is objective evidence that an employee may be unable to do his or her job or that the employee may pose a safety risk because of the condition.
  • To establish eligibility for benefits under other laws, such as the Family and Medical Leave Act (FMLA).

If an employee informs an employer about a condition, the employer cannot discriminate against the employee, and it must keep the information confidential.

“Substantially limiting” condition. A condition does not have to be permanent or severe to qualify. What matters is that the condition — when the symptoms are present —  makes activities more difficult, uncomfortable, or time-consuming.

Reasonable Accommodation. The guidance encourages employees to ask for a reasonable accommodation before any problems occur or become worse. The EEOC gives the following examples of reasonable accommodations:

  • Altered break and work schedules (e.g., scheduling work around therapy appointments);
  • Quiet office space or devices that create a quiet work environment;
  • Changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them);
  • Specific shift assignments; and
  • Permission to work from home.

The guidance notes that where an employee cannot perform all the essential functions of the job and no paid leave is available, an unpaid leave may be a reasonable accommodation if the leave will help the employee get to a point where he or she can perform those functions. Remember that an employer must provide a reasonable accommodation unless it involves substantial difficulty or expense.

Harassment. The guidance reiterates that harassment based on disability is prohibited under the ADA, and that employees should follow employers’ reporting procedures to report any harassment.

We suggest that you review the guidance and make sure that your current policies and practices comply.

 

 

EEOC Provides Guidance on Leave as a Reasonable Accommodation under the ADA

EEOC LOGOEarlier this week, the Equal Employment Opportunity Commission (EEOC) issued a new resource document on when leave constitutes a reasonable accommodation under the Americans with Disabilities Act (ADA).  Although the EEOC has always taken the position that employer-provided leave can be a reasonable accommodation, the new document highlights some of the standards for when and how leave must be granted.  At its core, the EEOC resource clarifies that unpaid leave is a reasonable accommodation unless the employer can show that the leave causes an undue burden.

The new EEOC document covers the following topics and provides specific examples of each:

  • Equal Access To Leave.  Employees with disabilities must be afforded access to leave on the same basis as all other similarly-situated employees.  In other words, if an employer receives a request for leave from a qualified disabled employee, and the leave would be covered  under the employer’s existing leave policy, the employer must treat the individual the same as an employee who requests leave for reasons unrelated to a disability.  The EEOC notes here that “employers are entitled to have policies that require all employees to provide a doctor’s note or other documentation to substantiate the need for leave,” but employers can’t apply that requirement discriminatorily.
  • Unpaid Leave.  Employers must consider providing unpaid leave as a reasonable accommodation to an employee with a disability if the employee requires it to return to work, as long as the leave would not create an undue hardship on the employer’s operations or finances.  This is required even if: “the employer does not offer leave as an employee benefit; …the employee is not eligible for leave under the employer’s policy; or … the employee has exhausted the leave the employer provides as a benefit …”
  • Interactive Process.  The employer is required to engage in an “interactive process” with the employee once the employee requests leave and the employer determines that the leave is not permitted under another program (such as PTO, FMLA or Worker’s Compensation).  As the EEOC acknowledges, the interactive process will likely continue during the employee’s leave, with the employer checking in on the employee’s progress and/or need for additional leave. When a leave is at issue, the EEOC recommends that the  process focus on the following questions:
    • “the specific reason(s) the employee needs leave …
    • whether the leave will be a block of time…, or intermittent …; and
    • when the need for leave will end
  • Maximum Leave Policies.  Employers may have leave policies that establish a maximum amount of leave allowed, but more time above the maximum would be a reasonable accommodation, unless the employer can show that allowing such leave would cause an undue hardship.
  • Return to Work.  An employer cannot require an employee to be “100% healed or recovered” to return to work — it must provide the employee a reasonable accommodation (including reassignment, for example) as long as the accommodation does not create an undue hardship.  An employer can refuse to allow an employee to come back to work with a medical restrictions only if the employee would pose a “direct threat” of substantial harm to him/her self or to others.
  • Undue Hardship.  When considering whether a leave would cause an undue hardship, the EEOC considers the following factors:
    • “the amount and/or length of leave required…;
    • the frequency of the leave…;
    • whether there is any flexibility with respect to the days on which leave is taken…;
    • whether the need for intermittent leave on specific dates is predictable or unpredictable…;
    • the impact of the employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner…; and
    • the impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer.”

We encourage all employers to read this new EEOC resource document in full.  Although “nothing new” per se, it serves as a great reminder for ADA compliance and offers many specific examples that may be pertinent to your own employee leave issues.

 

 

Supreme Court Speaks on Religious Accommodation

supreme court sealYesterday, the Supreme Court handed down its decision in EEOC v. Abercrombie & Fitch Stores, Inc., ruling in favor of a Muslim woman who claimed that she was denied employment at an Abercrombie & Fitch (A&F) store because she wore a headscarf.  With this decision, the Supreme Court sent a clear message: an employer may not make a hiring decision based on an applicant’s need for a religious accommodation, regardless of whether the employer had actual knowledge of such a need.

Samantha Elauf (Elauf) is a practicing Muslim who wears a headscarf for religious reasons. Elauf claims that she applied for a job at an A&F store and that, although she was otherwise qualified to be hired, she was ultimately denied employment because her headscarf would violate A&F’s “Look Policy.” The Look Policy prohibits “caps” because they are too informal for A&F’s desired image. Elauf never identified her headscarf as religious to anyone at A&F, nor did she ever communicate a need for any religious accommodation.  The EEOC sued A&F on Elauf’s behalf, claiming that A&F’s refusal to hire her violated Title VII.  In response, A&F argued that it could not be found to have discriminated against Elauf by failing to priovide a religious accommodation unless it had “actual knowledge” of Elauf’s need for a religious accommodation.  The district court disagreed with A&F’s argument and held in favor of Elauf the EEOC.  However, the Tenth Circuit reversed, agreeing with the “actual knowledge” standard put forth by A&F.

The Supreme Court reversed the Tenth Circuit and remanded the case for further consideration, holding that, under Title VII, an applicant only needs to show that her need for an accommodation was a “motivating factor” in the employer’s decision — she need not show that the employer had actual knowledge of the need for an accommodation. In other words, an “employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions” [emphasis added]. The Court gave as an example a situation where an employer thinks (but doesn’t know for sure) that a job applicant may be an orthodox Jew who will observe the Sabbath and thus unable to work on Saturdays. If the applicant actually does require accommodation of that religious practice and the employer’s wish to avoid the accommodation is a motivating factor in its decision to not hire the applicant, the employer violates Title VII. The Court was clear in its decision that its ruling only applies to accommodation under Title VII, and not to accommodation under the Americans with Disabilities Act (ADA), which follows a different framework.

The take away here?  Employers need to avoid basing employment decisions on any protected characteristic — whether confirmed or suspected. Although this case centered on a hiring decision and the anticipated need for an accommodation, it should apply equally to other terms and conditions of employment.

We recommend that managers, supervisors and those involved in the hiring process be trained on the legal requirements surrounding equal employment opportunity and on how to appropriately respond to requests for  — or other information suggesting that there is a need for — an accommodation.

Full text of the EEOC v. Abercrombie & Fitch Stores, Inc. decision can be found at:  http://www.supremecourt.gov/

EEOC Issues Proposed Regulations on Employer Wellness Programs

EEOC ImageCan your employees participate in a wellness program through work? Do you offer financial incentives for participating in the program? If so, listen up.

In April, the U.S. Equal Employment Opportunity Commission issued proposed regulations focusing on how the American with Disabilities Act applies to corporate wellness programs. The proposed regulations give some guidance on how to legally use financial incentives to encourage workers to participate in such programs.

Although Title I of the ADA generally prohibits employers from obtaining medical information from employees, it allows employers to give medical examinations to employees and ask about their health if they are part of a voluntary “employee health program.” Before the proposed regulations, the EEOC had not yet determined whether employers could offer financial incentives to encourage employees to participate in such programs or whether offering incentives would make participation involuntary. The new proposed regulations answer these questions — according to the EEOC, employers may offer incentives up to 30% of the cost of the employee-only coverage to employees who participate in a wellness program and/or achieve certain health outcomes.

The proposed regulations (http://www.regulations.gov), in most pertinent part:

  • Define an “employee health program;”
  • Set forth the requirements that must be met for a program to be considered “voluntary;”
  • Detail the 30% of cost incentive limit; and
  • Set forth additional confidentiality requirements of information gathered during participation in wellness programs.

Although these regulations are only proposed and may or may not go into effect as written in the near future, we suggest that you review your wellness programs and corresponding financial incentives in light of the regulations. Please note that under existing laws – even before the introduction of the proposed regulations – you cannot:

  • Require employees to participate in a wellness program;
  • Deny health insurance to employees who do not participate in the program;
  • Take any adverse employment action or retaliate against, interfere with, coerce, or intimidate employees who do not participate in the program; or
  • Deny employees with disabilities reasonable accommodations that allow them to participate in a wellness program and receive any related incentives.

Supreme Court Speaks on Pregnancy Accommodation

supreme court sealOver the next couple of days, we are catching up on some recent developments.  The first one we are going to discuss is the long-awaited decision by the Supreme Court inYoung v. UPS.

In Young, a pregnant employee requested light duty as an accommodation under the Pregnancy Discrimination Act (“PDA”).  The PDA is a subsection of Title VII of the Civil Rights Act of 1964 that requires employers to treat “women affected by pregnancy…the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.”

The plaintiff argued that she should have been given light duty because the defendant, UPS, gave light duty assignments to employees with disabilities under the Americans with Disabilities Act (“ADA”), those with workplace injuries, and those who had lost Department of Transportation (“DOT”) certifications.  UPS argued that it did not act unlawfully because it treated the plaintiff the same way it treated any other employee with physical limitations who did not meet UPS’ requirements for light duty — i.e., who did not have a disability under the ADA, did not have a workplace injury, and had not lost DOT certifications.

In its decision on March 25, 2015, the Court set out a new standard for assessing accommodation claims under the PDA. The Court held that a pregnant employee can make a prima facie case of pregnancy discrimination by showing that she requested an accommodation, that her request was denied, and that others similar in their ability or inability to work have been accommodated.  At that point, the employer must show that it had legitimate, nondiscriminatory reasons for accommodating other employees but not the pregnant employee.  The burden then shifts back to the employee to show that the employer’s reasons are pretexts for discrimination or that the employer’s policies impose a significant burden on pregnant employees which outweighs the employer’s reasons for the policies.

Although the decision did not go as far as some advocates for pregnant employees would have liked, it undoubtedly makes it easier for pregnant employees to bring claims under the PDA. Going forward, employers will be risking litigation if they reserve light duty assignments or other accommodations for only certain classes of employees, at least without a compelling justification for excluding pregnant employees.   In light of this, employers should review their policies and practices regarding pregnancy-related accommodations for consistency.  All requests for accommodation should be taken seriously and employers should gather as much information as possible in evaluating each individual request. Doing so may reduce the likelihood of future pregnancy-related claims, as well as protect employers from potential liability.

For the full decision in Young v. UPS, visit www.supremecourt.gov/opinions/slipopinions.aspx.