When the ADA Amendments Act went into effect in January of 2009, prudent employers shifted their focus from questioning whether an employee was truly disabled, and thus covered by the ADA, to responding to accommodation requests and engaging in the interactive process.   A recent spate of EEOC-initiated lawsuits involving “extended leave of absence policies” serves as a stark reminder that those employers that fail to routinely explore reasonable accommodations before terminating disabled employees, even employees who have been off work for more than a year, do so at their own peril. 

 The outer limits are easy to define.  Even the EEOC acknowledges that indefinite unpaid leave is not a reasonable accommodation.  Beyond that absolute, however, there are no clear-cut answers as to how far employers are expected to go in accommodating employees who are unable to work.  Providing additional unpaid leave beyond the 12 weeks required by the FMLA will, in most cases, be viewed as a reasonable accommodation that employers must grant.  Indeed, the EEOC has taken the position that an employer must provide additional leave at the expiration of the FMLA-covered period as a reasonable accommodation unless (i) there is another effective accommodation that would allow the disabled employee to return to work and perform the essential functions of the employee’s position, or (ii) granting additional unpaid leave would create an undue hardship for the employer.  Unfortunately, many employers have, in an effort to manage their way through the complex web of state and federal leave laws, workers’ compensation statutes and short-term disability benefit programs, promulgated absence control policies with automatic termination thresholds, often at the one-year anniversary. 

Seeking to put an end to, or at least significantly curtail, this approach, the EEOC is issuing probable cause findings and filing lawsuits against employers around the country.  Spencer H. Lewis, Jr., director of the EEOC’s New York District Office, announcing a lawsuit against the Princeton Healthcare System, explained that “too many companies discriminate against persons with disabilities by strictly applying blanket leave policies.”  Chicago District Office Regional Attorney John Hendrickson, announcing a $6.2 million settlement with Sears, warned:  “[T]he era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accom-modation requirements of the ADA is over. . . .  Just as it is a truism that never having to come to work is manifestly not a reasonable accommodation, it is also true that inflexible leave policies which ignore reasonable accommodations making it possible to get employees back on the job cannot survive under federal law.”  The common thread running throughout these class actions is an allegation that the employer’s extended leave of absence policies were unlawfully inflexible and prevented engagement in the interactive process required by the ADA. 

Also noteworthy is the fact that the EEOC has recently sought nationwide discovery regarding the employer’s extended leave of absence policies in a number of cases initially brought on behalf of individuals, as opposed to a class of employees.  Employers are well-advised to treat seriously any claim involving such a policy, lest they be caught unprepared, devoting minimal resources to what is perceived as an insignificant single party claim, only to end up facing a pattern or practice class action lawsuit by the EEOC. 

Reducing Risk

Proactive employers should consider the following options:

• Amend your leave of absence policies that call for automatic termination following a specified leave term; instead it should provide that termination will only occur if no reasonable accommodation is available to assist the employee in returning to work. 
   
• Eliminate any policy or practice requiring that the employee be 100% released for full duty before allowing the employee to return to work. 
   
• Assign a dedicated HR representative, or team of HR representatives, trained on ADA issues and reasonable accommodations, to handle leave of absence returns and the associated return to work and accommodation process. 
   
• Consider extending an unpaid leave of absence for a reasonable period if the employee represents he or she will soon be able to return to work. Other accommodation options that should be considered include allowing the employee to return to modified duty, part-time work, reassignment to a different position (with or without a reasonable accommodation) and assistive devices. 
   
• Notify an employee that he or she is approaching the end of the leave period and invite the employee to engage in the interactive process to discuss whether reasonable accommodations are available to assist the employee in returning.  Importantly, employers should document every communication with the employee during the interactive process, including every offer of a reasonable accommodation and every response from the employee. 
   
• No termination decision should be made unless the employer has a documented record of attempting to engage the employee in an interactive process to explore reasonable accommodations, and has fairly exhausted all reasonable efforts to assist the employee in returning to work.