A top EEOC official recently provided some solid guidance to employers on how the new ADA rules and employee leave policies interact.
John Hendrickson, regional attorney for the EEOC, appeared before a hearing on employee leave in Washington.
Hendrickson offered several guidelines for what employers need to do to stay out of legal trouble when administering policies in the era of new ADA regs. Here’s a sampling:
An inflexible period of disability leave isn’t sufficient to satisfy an employer’s duty of reasonable accommodation. Employers who offer disability leave tend to see the period of that leave as all that is necessary for ADA compliance.
But reasonable accommodation requires more than putting an employee on leave and waiting to see if the employee heals 100% and can return in the same job performed in the same way as before the employee went on leave.
Leave may be the appropriate accommodation in some cases, but in other cases, the employer must determine whether there is any other accommodation — like reassignment, reduced hours or an assistive device — that would enable the employee to return to work.
The appropriate length of leave under the ADA requires an individualized analysis — even when the employer has a generous leave policy. Leave that can never be extended is not consistent with the ADA. Fixed leave policies should be amended to make clear that the leave period can be extended or adjusted as a reasonable accommodation — where such an extension or adjustment would not result in undue hardship to the employer.
Separating leave administration from ADA administration is risky. There seems to be a trend toward outsourcing benefits administration for employees on leave, including the administration of worker’s compensation benefits and disability benefits.
In practice, this means that a third-party is collecting information regarding employees’ health conditions and ability to work for purposes of benefits payment. Employers may maintain a separate ADA administration mechanism that considers requests for accommodation.
What may result is the proverbial left hand failing to know what the right hand is doing. The information collected for benefits administration by the employer is not used by the ADA administrators at the same employer to determine if the employee on leave can be brought back to work with a reasonable accommodation.
Clear lines of communication regarding reasonable accommodations are critical not only with employees on leave but also with their health care providers, supervisors and managers. Best practices require communication about the availability of reasonable accommodations with the players at all levels of the leave process.
The employee should know how he or she might be able to return to work with an accommodation, even if he or she is not 100% healed.
The employee’s health care provider should understand the availability of alternative means of performing work so that an informed return-to-work certification can be completed.
Managers who deal with employees returning from leave must be educated to support reasonable accommodations in the workplace to make them a reality.
For a look at Hendrickson’s full written statement to the hearing officers, go here.
