I started practicing law two years before Congress enacted the Americans with Disabilities Act (1990), and four years before it took effect (1992 for larger employers, 1994 for smaller ones).
In my foggy memories of that pre-ADA world, one thing that stands out is the idea that an employer could never go wrong by treating everybody exactly the same. That was the way to avoid liability for discrimination.
The ADA changed all that with the concept of “reasonable accommodation.” (Title VII already required reasonable accommodation for religious beliefs, but those situations were not common, and religious accommodation obligations were not onerous. And the Rehabilitation Act of 1973, which required reasonable accommodation for disabilities, applied only to federal contractors.)
After the ADA took effect, we spent a lot of time training supervisors and managers and even Human Resources professionals, to abandon the mentality that everybody should be treated the same, always, no matter what.
I haven’t had that problem with a client in years – at least, I don’t remember one – but suddenly I’ve been seeing news about employers who seem rather . . . rigid. And paying large settlements as a result.
Is this employer inflexibility (dare I say, "stubbornness") a trend? If so, why? After all, we have not only the ADA and the Rehabilitation Act, but we also have a more demanding standard for employers in considering and making religious accommodations under Title VII, and the Pregnant Workers Fairness Act, a relatively new federal law that requires reasonable accommodation for pregnancy and pregnancy-related conditions.
Not to mention lactation accommodation, required by the PUMP for Nursing Mothers Act.
I don't know. But in the hope of helping you avoid becoming the next victim of an enforcement agency or a plaintiff’s lawyer, here are four things related to reasonable accommodation that you should NOT do.
REASONABLE ACCOMMODATION WORST PRACTICES
No. 1: Refusing to let an employee take a little extra leave for a medical condition. The Equal Employment Opportunity Commission announced this week that it settled a case for more than $900,000 where, among other things, an employer allegedly terminated employees if they couldn’t return to work immediately after their leave under the Family and Medical Leave Act was exhausted.
And when I say "immediately," I am not exaggerating.
In the one situation mentioned in the EEOC press release, the employee was out for open heart surgery, exhausted his 12 weeks of FMLA leave, and was released to return to work at the end of the 12 weeks.
Perfect.
Except the employer allegedly required the employee to be cleared by the employer’s medical examiner in addition to being cleared by his own cardiologist.
Oh, OK, sure, no problem.
And the employee allegedly couldn’t get an appointment with the medical examiner for nine days.
Well . . . too bad, but not the end of the world.
So the employer allegedly fired the employee for not being able to return to work immediately after the end of his 12 weeks of FMLA leave.
WHAT????
Arguably the employer did not violate the FMLA because it gave the employee his full 12 weeks of FMLA leave. (The company could have been liable for FMLA retaliation, but apparently this alleged "come back to work the very instant your FMLA leave ends or is exhausted" policy applied to everybody.)
But, according to the EEOC, the employer did violate the ADA. And there's no question that a condition requiring open heart surgery is a “disability” within the meaning of the ADA, that a nine-day extension of medical leave is a reasonable accommodation, and that refusing to give that extension is almost certainly an unlawful refusal to make a reasonable accommodation.
Allegedly.
No. 2: “100 percent-recovered” policies. This is from the same case discussed above. The employer also allegedly had a policy requiring employees to be 100 percent recovered, with no restrictions, before they would be allowed to return to work after medical leave. You can’t do that. If the restrictions are so severe that the employee can’t work even with a reasonable accommodation, then fine. But restrictions that can be accommodated have to be accommodated.
No. 3: Refusing to be flexible about medical documentation. First off, under the ADA, there is nothing wrong with asking an employee to get a release to return to work after a medical leave, and/or for documentation of the need for reasonable accommodation. (The rules under the PWFA are different, so please review those before deciding what documentation you can request for pregnancy and pregnancy-related conditions.)
Even from an ADA standpoint, getting the documentation isn’t always as straightforward as it sounds. As with the employee discussed above, sometimes you just can’t get an appointment fast enough. We’ve also heard stories about doctors who charge their patients extra if they have to fill out FMLA medical certifications. I sympathize somewhat with the doctors – I wouldn’t want to have to fill out FMLA paperwork either. But those extra fees can be a genuine hardship for lower-income employees.
So if an employee can’t get the documentation to you quickly enough, do consider whether there is a legitimate reason for the delay, and if so, do consider accommodating the employee. In the case of an appointment that can’t be scheduled quickly enough, consider a reasonable extension of time. Or allow the employee to get the evaluation from an "urgent care" practice that takes walk-in patients.
In the case of a doctor who charges to fill out the paperwork, first consider whether you really need it. It's up to you whether to require documentation, so you can dispense with that requirement in appropriate cases.
If you do need the documentation, consider having the company pay the paperwork fee or reimburse the employee. If you can't do that, you might be able to keep a list for employees of local doctors who don’t charge for completing medical paperwork. If you can’t do that, maybe you can at least give the employee enough extra time to scrape together enough money to pay the doctor.
No. 4: Requiring an employee to go out on leave when the employee could work with a reasonable accommodation. This is one that I still see from time to time. An employee needs reasonable accommodations for a disability, or for pregnancy or a pregnancy-related condition. What do you do? (It’s easy!)
- Obtain whatever medical documentation you need to confirm the condition and need for accommodation. (Again, the pregnancy documentation rules are not the same as the ADA rules.)
- Brainstorm with the employee to determine which accommodations, if any, will be effective.
- If you can accommodate, choose the accommodation that you will provide. You should consider the employee’s preference, but you can go with your own preference if you want. That might include an accommodation that is less expensive or less disruptive to co-workers, among other things. As long as the chosen accommodation is “effective” (lets the employee perform the job), then you should be fine.
- Put the accommodation(s) into place, and periodically follow up with the employee to see how things are going, making adjustments as needed.
What you should not do is require the employee to go out on leave if the employee wants to work and is able to work with or without a reasonable accommodation. That’s a violation of the ADA, or the Pregnant Workers Fairness Act, or both, as the case may be.
“If we do it for you, we’ll have to do it for everybody” is so 1989.
