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HR yoga — EEOC really wants employers to be more flexible

July 21, 2011

The EEOC has released a rash of press releases touting settlements with employers for alleged ADA violations.  The largest, against Verizon, cost the company $20 million.  The common issue to these settlements is an employer’s “inflexible” (according to the EEOC) enforcement of absenteeism and leave policies, to the detriment of employees who are disabled under the ADA.

Wait a minute, you say.  I am a generous employer.  I provide my employees with more leave than is required under FMLA (or its California analog, CFRA).  Those laws give 12 weeks?  I give six months, no questions asked.  And, to avoid any appearance of discrimination, I apply the rules evenly and automatically terminate all employees who are unable to return to work at the end of their leave.

Ah, say the regulators, and the plaintiff’s bar.  That’s just the problem.  You also need to consider whether additional time away from work is a “reasonable accommodation” under the ADA.  And your inflexible application of your leave policy — generous as it may be — means you breached your obligations to (1) talk with the employee about reasonable accommodations; and (2) grant a reasonable accommodation absent a showing of undue hardship.

Under both Ninth Circuit and California case law, unpaid medical leave may be a reasonable accommodation under the ADA and analogous California law.  This is true even if the employee has already exhausted all of her FMLA or other disability leave the employer offers.  (Although the same case held a request for indefinite leave of absence is not required.)  Just as important, employers need to engage in the interactive process with the employee to identify potential accommodations (including leave), and to document how any such accommodations would create an undue hardship for the employer.

A few tips for California employers seeking to navigate these dangerous waters:

1.  Be flexible.  When a worker’s health is an issue, don’t apply maximum leave policies or attendance policies by the letter.  Take an individual approach with each employee who says she needs additional time away from work to bet better.

2.  Talk to the employee.  The interactive process is a must in these situations.  Talk to the employee on a regular basis.  Find out what she wants.  Find out what her doctor is recommending, and why.  It’s OK to ask if the employee or her doctor think the leave will permit the employee to return to work, but (absent undue hardship) the employee has no obligation to prove it.

3.  Grant the first request for leave if you can.  Obviously, undue hardship issues come into play.  If you absolutely, positively can’t give the employee additional time off from work, be prepared to show why.  A much better option, however, is to provide some additional leave and then argue that subsequent requests for more are really just a request for an indefinite leave.

4.  Document the discussions.  Keep careful records of the process, what accommodation options were identified, any accommodations the employee rejected, and the costs and expenses incurred by the company in providing an accommodation.

5.  If you can’t offer leave, offer something.  An employer is rarely well served by saying “there’s nothing we can do.”  Identify some alternatives in the process, and offer them.  You’ll look a lot more reasonable to a jury.

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