By Laura K. Clayman
Consistency [kuh n-sis tuh n-see] (noun): steadfast adherence to the same principles, course, form, etc., as defined on Dictionary.com. To use it in a sentence: HR professionals know that consistency is key. If an employer develops company policies and strictly follows those procedures, then the company will avoid many allegations of discrimination and unfair treatment…right? The Equal Employment Opportunity Commission (EEOC) recently issued guidance titled “Employer-Provided Leave and the American with Disabilities Act” to remind us that – in the context of extended leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) – consistency without individual consideration can land an employer in some serious hot water.
The EEOC enforces Title I of the ADA which prohibits employment discrimination on the basis of disability. Any employee with a disability should be provided with access to leave on the same basis as all other similarly-situated employees. In addition, employers must grant reasonable accommodations to employees with disabilities in order to allow them to perform their job duties. The EEOC specifically considers employer-provided leave, extended beyond the parameters of other mandated leave (i.e. FMLA) or voluntarily provided leave (i.e. sick, vacation or PTO time), to be an appropriate reasonable accommodation under the ADA.
The EEOC states that “the purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work. Leave as a reasonable accommodation is consistent with this purpose when it enables an employee to return to work following the period of leave.” Whether to continue leave after all options have been exhausted (sick time, vacation, FMLA) must be made on a case-by-case basis. The ADA requires that employers engage in an interactive discussion to determine when an employee will be able to return to work.
It is a common practice for employers to create “maximum leave policies” (also called no fault, neutral, or blanket leave policies). These policies usually serve as a clear roadmap to guide supervisors, managers, and HR in administering leave without favoritism or discrimination. If an employee is out longer than the policy allows, that employee is subject to termination. These policies are intended to do several things: help avoid discriminatory treatment, ease administration, and give a clear cut off for benefits and termination. A typical maximum leave policy will state that an employee is only allowed to take a maximum of 12 weeks leave within a 12-month period (in compliance with typical FMLA job protections). If the employee is unable to return at the end of that leave, he or she is automatically terminated. The EEOC provides another example with a policy that permits employees to have no more than 5 unplanned absences during a 12-month period.
In light of the recent EEOC guidance, maximum leave policies should be used with extreme caution, as the ADA requires employers to make exceptions to those for reasonable accommodation, if necessary. Employers are still allowed to have these types of policies, but the danger lies in that serving as the end of the discussion. Employers must engage the employee in an “interactive discussion” if the employee (with a condition falling under the ADA) wishes to extend that maximum leave period, or has additional unplanned absences. The interactive discussion is the back-and-forth meaningful conversation about what the disabled employee requires to be able to perform his or her job and how long the employer is able to hold the job open before meeting the threshold of undue hardship. In that case, the employer must discuss with the employee how much additional leave he or she may need beyond the expired maximum leave period. At that point, the employer makes the determination whether it would be a hardship to allow the employee the additional time to recover.
If a company maintains a maximum leave policy, communication issues are likely to arise. Employees may be confused by standard forms provided to those going out on FMLA, i.e. Notice of Eligibility and Rights & Responsibilities (FMLA) Form WH-381 and Designation Notice (FMLA) Form WH-382. These forms are necessary, but can lead employees to believe that there is no possible extension of the leave end date set forth on the notice. Employers should provide additional paperwork and communicate to employees that they should ask for additional leave as soon as possible if they feel that it is a reasonable accommodation. As a best practice, employers should initiate this conversation even if the employee makes no mention of an extension of leave. It is the employer’s responsibility to meet the EEOC requirements under the ADA, not the employee’s.
An employer is allowed to ask for additional medical documentation specifying the reason for the additional leave and the expected amount of time needed. There is no clear guidance on when extended leave crosses over into undue hardship for employers; however, it has been established that an employee’s request for indefinite leave will always be considered an undue hardship.
If an employer takes the EEOC’s words to heart, and consistently begins an interactive discussion when an employee is unable to return to work after exhausting all other employer-provided leave, then the goal of administering leave policies without discrimination or unfair treatment will still be attainable.