After the ADA was expanded, courts have consistently ruled that employers must consider offering additional leave as a “reasonable accommodation” for disabled employees after they exhaust their FMLA allotment. Problem is, employers have been given very little guidance as to when and where this accommodation should apply.
Here’s some sensible advice from a session featuring FMLA Insights founder Jeff Nowak and EEOC Commissioner Chai Feldblum.
The topic: Leave as a reasonable accommodation under the ADA.
The presentation offered employers a number of tactics that will help keep them in compliance when there is a FMLA/ADA overlap.
1. Communicating too late sinks employers
Commissioner Feldblum offered an explanation for why the EEOC generally decides to come after firms in the first place. And, for employers that heed his advice, the explanation should help keep them out of court.
What he said: The EEOC tends to go after firms when they’re to blame for a breakdown in the interactive process. To prevent problems here, employers should communicate with employees on FMLA leave before, during and after the leave ends. If employers engage in the interactive process early on in an employee’s FMLA leave — and determine whether additional leave may be a reasonable accommodation — chances are they’ll be able to avoid a problem after the employee’s leave is exhausted.
2. Supervisors create liability
As HR pros are well aware, managers and supervisors are normally the first individuals to deal with an employee’s accommodation request. Feldblum says when supervisors,” just blow [federal laws like the ADA] off” they put companies in a very bad spot. It can’t be stressed enough: Regular comprehensive manager training is one of the best ways to avoid any type of FMLA and ADA compliance problems.
3. ‘Undue Hardship’ must be assessed early
Another common problem among employers regarding additional leave as an accommodation: only conducting the undue hardship analysis after an employee has already exhausted his or her FMLA leave. According to Feldblum, businesses can assess whether additional leave will present an “undue hardship” on “day one” of an employee’s FMLA leave. And to present a solid case for undue hardship, they should probably be doing just that.
The EEOC does offer Enforcement Guidance on Reasonable Accommodation and Undue Hardship. However, this document doesn’t specifically spell out the timing of when a company should assess additional leave as an undue hardship. But Feldblum’s comments suggest firms that make this assessment during an employee’s scheduled leave time have a much better chance of proving additional leave would present an undue hardship.
4. Leave must impact business, operations
Finally, the presentation focused on the specific factors that can help an employer deny additional leave as a reasonable accommodation. These included:
- Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working OT who may be slower and more susceptible to error
- Lower quality and less accountability for quality
- Lost sales
- Less responsive customer service and increased customer dissatisfaction
- Deferred projects
- Increased burden on management staff required to find replacement workers, or readjust workflow or readjust priorities in light of absent employees, and
- Increased stress on overburdened co-workers.
It’s worth noting that Feldblum didn’t believe that lower employee morale should be considered a factor in the undue hardship analysis.
However, Nowak believes that if a company can prove that the lower morale was caused by any of the factors listed above, then it should be considered in the analysis. He does, however, caution employers never to cite low morale as the sole — or even as a major reason — for an undue hardship claim.