Published in the NH Business Review (9/30/2016)
Disability discrimination claims filed against employers hit an all-time high in 2015. Seeing this trend, the Equal Employment Opportunity Commission set out to improve employer education on what is required under the law and to provide them with a resource document to help assist them as they grapple with leave requests from employees.
The Americans with Disabilities Act prohibits discrimination on the basis of disability in employment and applies to employers with 15 or more employees. It requires employers to provide disabled employees or applicants for employment with reasonable accommodations unless doing so would cause an undue hardship.
Reasonable accommodations are changes in the work environment or changes in process or how things are done that allows an employee with a disability to perform the essential functions of their job. New Hampshire’s Anti-Discrimination Statute also recognizes disability discrimination and applies to employers with six or more employees.
A reasonable accommodation may include observing a weight or lifting restriction, providing someone with an ergonomic keyboard, or allowing periodic breaks. It may also include providing employees with leave from work or modifying a company’s leave policy for an employee with a disability.
Employers may use the EEOC’s new resource document when considering leave requests by employees as a reasonable accommodation under the ADA. The Employer-Provided Leave and the Americans with Disabilities Act address key topics that include:
- Access to leave under an employer’s leave policy: Employers must provide employees with access to leave “on the same basis as other similarly-situated employees.” Policies may require all employees to provide documentation to substantiate the need for leave -— like a doctor’s note.
- Granting leave as a reasonable accommodation: Employers must provide employees with leave as a reasonable accommodation. This includes providing unpaid leave to an employee with a disability so long as doing so does not create an undue hardship for the employer. An employer is not required to provide paid leave beyond its paid leave policy. Employers may also not penalize an employee for taking leave as a reasonable accommodation.
- Communication after an employee requests leave: This is also referred to as the “interactive process.” Employers must engage in the interactive process after a disabled employee requests leave, or additional leave, for a medical condition. Employers must treat the request as a request for a reasonable accommodation. As the EEOC explains, the interactive process is “a process designed to enable the employer to obtain relevant information to determine the feasibility of providing the leave as a reasonable accommodation without causing an undue hardship.”
- Communication during leave and prior to return to work: Employers should continue to engage in the interactive process if the disabled employee seeks additional leave due to a medical condition. Employers may also ask for information from the employee as to the leave and the employee’s return to work.
- Maximum leave policies: Employers will be found in violation of the ADA if they enforce maximum leave policies. While employers may have policies that set a maximum amount of leave the employer will allow, employers may need to grant exceptions to disabled employees and allow them additional leave beyond the maximum as a reasonable accommodation.
- Return to work and reasonable accommodation (including reassignment): Employers will be found in violation of the ADA if they require employees to be 100 percent recovered or have no restrictions before they can return to work. Employers should continue engaging in the interactive process if employees return to work with restrictions. This allows discussion as to reasonable accommodations that will allow an employee to perform the essential functions of the job or consider reassignment to a vacant job position for which the employee is qualified.
- Undue hardship: Employers may determine whether granting leave, or additional leave, is an undue hardship. Factors that may be considered include impact on the employer’s operations and ability to serve customers, impact on co-workers and duties of job, whether intermittent leave is predictable or unpredictable, whether there is flexibility on when leave is taken, frequency of the leave, and amount and/or length of leave.
Companies should review their policies and procedures on leave so that they can make sure they are properly considering requests for leave by disabled employees. Training managers and supervisors on leave laws, how to handle leave requests, and the interactive process are also considered best practices. Consultation with counsel is also advisable as properly considering leave or extended leave requests and documenting the interactive process may avoid liability.
Jennifer L. Parent, chair of the Litigation Department and a director in the Employment Law Practice Group of McLane Middleton, can be reached at 603-628-1360 or [email protected].