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Leave Beyond FMLA; What Should Employers Do Now?

The recent ruling by the 7th Circuit Court of Appeals (which is comprised of Illinois, Indiana and Wisconsin) may have employers wondering what they need to do when an employee who is covered by the Federal Family and Medical Leave Act (FMLA) requests leave beyond 12 workweeks as a reasonable accommodation under the Americans with Disabilities Act (ADA). In the case of Severson v. Heartland Woodcraft, Inc., No. 15-3754 (September 20, 2017) the court ruled against an employee who needed a two-to three-month absence in addition to leave available under  the FMLA. The court determined that an extended leave of absence for an employee is not a reasonable accommodation required by the Americans with Disabilities Act (ADA). The 7th Circuit also found that each of the proposed ADA accommodations facilitate work rather than excuse long absences from work.

The Equal Employment Opportunity Commission (EEOC) and many courts differ with the 7th Circuit’s opinion. The 7th Circuit stated that they recognize that the FMLA’s obligations may not be sufficient to satisfy the ADA’s reasonable accommodation requirements when it comes to medical leave since “the ADA is an antidiscrimination statute, not a medical-leave entitlement.” It has been a long-standing opinion of the EEOC that employers may need to accommodate leaves for disability even where FMLA leave has been exhausted, unless it poses an undue hardship on the employer. It is important for employers to understand that despite the 7th Circuit’s ruling, the EEOC’s position has not yet changed.

The ruling conflicts with the EEOC’s guidance on reasonable accommodations and employers may not be able to broadly apply the opinion of the 7th Circuit to their accommodations practices without facing scrutiny from the EEOC. It should also be noted that courts in other circuits may not share the 7th Circuit’s interpretation of what is considered a reasonable accommodation. For this reason, employers should proceed with a careful examination of each disability-related situation and ensure that they have strong procedures in place that have been communicated to managers and supervisors throughout the organization regarding accommodation requests prior to taking adverse employment action.

For employers considering ADA accommodation requests, some practical advice from the Job Accommodation Network (JAN)  follows:

Five Mistakes to Avoid When Making Reasonable Accommodation Requests:

Mistake No. 1

Assuming an adversarial stance. Adopting an “us versus them” attitude rarely works out well for either side. Instead, focus on how the process can support business goals such as improved retention, injury prevention, and diversity and inclusion.

Mistake No. 2

Allowing front-line supervisors to evaluate requests. Managers should be trained to refer any employee requesting an accommodation to the designated HR representative. Having one person or unit responsible for handling accommodations is the best way to ensure consistency and legal compliance.

Mistake No. 3

Trying to prove the employee isn’t disabled. The ADA Amendments Act of 2008 broadened the definition of disability considerably. Legal experts say it is very difficult to disprove an employee’s disability claim. Instead, focus on evaluating the disability’s impact on the essential job functions and the practicality of the available accommodations.

Mistake No. 4

Keeping it to yourself. Establish a confidential file separate from the employee’s personnel file, and document every conversation scrupulously. You should still speak with the employee on the phone or in person, but follow up with a written memo and include it in the file. Be sure to keep the employee informed of the request’s progress; lack of communication leads to frustration and distrust.

Mistake No. 5

Closing the file. Even after a request is approved and the accommodation is implemented, follow up regularly to ensure that the changes are working for everyone involved. Set a regular schedule for follow-up during the first year, and make an accommodations check-in part of the annual performance evaluation process going forward. Document all follow-up activities as they occur.

Employers should continue to consult with their legal counsel prior to making employment-related decisions.

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HR Works, Inc., headquartered at 200 WillowBrook Office Park in Fairport (Rochester), New York, with an office in East Syracuse, is a human resource management outsourcing and consulting firm serving clients throughout the United States. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.