Thursday, May 12, 2016

New FMLA and ADA Resources, Old Problems

In the past three weeks, employee leaves have gotten a lot of attention.  The Department of Labor issued new FMLA guidance and a new poster.  Then, this week, the EEOC issued a new resource page for employer-provided leaves under the ADA.  Although these new resources do not include any earth shattering revelations, they do provide helpful advice and are worth reading.    
These new resources also remind us about some of the most common employer missteps.  Here are two that we often get asked about:
Work vs. Non-Work Injuries
In employment law, we sometimes refer to the FMLA, ADA, and workers’ compensation laws as the Bermuda Triangle, where employers can find themselves lost at sea.  Under the workers’ compensation laws of many states, employers must provide light duty for employees injured on the job when the work is available.  It is tempting for employers – particularly in industries where injuries are relatively frequent - to reserve light duty work for employees affected by work related injuries. The EEOC, however, states explicitly that regardless of the source of the injury, injured or disabled employees must be accommodated, through assignment to light duty work if appropriate, unless such an accommodation imposes an undue hardship.
Young v. UPS is a great example.  UPS had a policy of providing light duty work only to employees who suffered a work injury.  When a pregnant employee requested light duty work, she was not accommodated.  She sued, alleging that UPS treated her differently because she was pregnant.  The U.S. Supreme Court agreed, holding that the UPS practice of treating employees differently based on the source of their disability (however temporary) was unlawful.    
The EEOC’s position on this issue is not new. In an Informal Discussion Letter dated January 28, 2000, the EEOC wrote:
If an employee with a disability who is not occupationally injured becomes unable to perform the essential functions of his/her job, and there is no other effective accommodation available, the employer must reassign him/her to a vacant reserved light duty position as a reasonable accommodation if (1) s/he can perform its essential functions, with or without a reasonable accommodation; and (2) the reassignment would not impose an undue hardship.
Instead of treating employees differently based on the source of or reason for their injury or illness, employers should seek reasonable accommodations that focus on what the employee is able to do.
“No Restrictions” Policies
For years, employment attorneys have advised clients that they cannot prohibit employees from returning to work until they are 100% healed or have no work restrictions.  The EEOC asserts that such policies and practices are violations of the ADA.
The new EEOC ADA resource page states that employers must treat requests for leave as requests for a reasonable accommodation.  Even when an employer is not required to grant leave under the FMLA (e.g. because it has too few employees), the ADA may still apply and may require the employer to consider unpaid leave as an accommodation. 
When an employee returns from leave, the ADA also applies.  Employees may request additional time off or some other accommodation to enable them to do their work.  As with all requests for accommodation of a covered illness or injury, employers in this situation are required to engage in an interactive process before determining how to respond to an employee’s request.  Employer and employee must discuss what the employee can do and what assistance he or she may need to perform the job.  Only after the interactive process occurs can an employer determine that the employee’s return to work will create an undue hardship. A blanket policy requiring that employees only return to work when all medical restrictions are lifted violates the ADA.
There is no doubt that it’s challenging to comply with all the laws that may apply to an injured or disabled employee.  Each situation must be considered on its own merits. Shortcuts and one-size-fits-all policies can end up creating more problems than they solve.  With thoughtful attention to compliance requirements and frequent use of resources like those listed above, however, employers can find their way.
Posted by Kate Bischoff