The 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.
Earlier 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.
On Friday, the EEOC filed suit against AutoZone, alleging that the car repair company violated the Americans With Disabilities Act by applying its attendance policy in a way that failed to accommodate certain disability-related absences. This is the EEOC’s fourth disability discrimination case against AutoZone in the last 5 years.
Under AutoZone’s policy, employees received points for absences, with 12 points resulting in termination. According to the EEOC, the policy did not make any allowances for disability-related absences (such as early departures by a diabetic employee who had insulin reactions), which the EEOC has alleged constituted a failure to accommodate.
Employers often — wrongly — assume that the fact that an employee doesn’t qualify for (or has exhausted) FMLA leave means that he can be terminated for his absences. However, if the reason for the absence relates to the employee’s medical condition, it’s critical that the absence be considered under an ADA reasonable accommodation analysis as well.
The Americans with Disabilities Act (ADA) requires that an employer reasonably accommodate an employee with a disability unless the proposed accommodation would impose an undue hardship. Often, one of the first accommodations requested by employees is the ability to work at home rather than come into the workplace. Sometimes such requests flow from genuine needs related the employee’s disability, but other times they stem from the employee’s desire to be away from the day-to-day oversight of the employer.
Courts that have looked at this issue usually have determined that working from home is not a reasonable accommodation, recognizing (rightly, we think) that working at home makes supervision and interaction with coworkers more difficult. Over the years, the fact that so many courts reached the same conclusion about working from home gave a certain amount of comfort to employers that denied such requests. They could be reasonably certain that their decisions either would not be subject to challenge under the ADA or, if challenged, would not be second guessed.
On April 22nd, however, the Sixth Circuit Court of Appeals (which hears appeals from federal district courts in Kentucky, Michigan, Ohio, and Tennessee) departed from this trend and held in Equal Employment Opportunity Commission v. Ford Motor Company that working from home may be a reasonable accommodation in some situations. The court distinguished earlier cases by explaining that technology has extended the workplace beyond the office’s brick and mortar walls and made telecommuting more viable.
The decision in the Ford Motor case likely opens the door to more accommodation requests from employees involving working at home, and ensures greater scrutiny by courts of an employer’s reasons for denying such requests. Going forward, employers will need to closely examine the pros and cons of any bid to telecommute, as an automatic denial will be more risky under the ADA. In addition, employers should reassess their job descriptions and determine whether a physical presence in the office is an essential job function. Furthermore, employers need to consider that if they allow some employees to telecommute, courts may assume that telecommuting would be a reasonable accommodation for other employees.