Most of us think about workplace accommodations as modifications that will allow an employee with a disability to perform his job.  Without the accommodation, doing the job may be difficult or impossible. Whether that means modifying the job duties, changing the schedule, or providing an assistive device, the ultimate objective is to help the employee to work.

But, an employer’s obligation to reasonably accommodate may not be limited to modifications that will help the employee work.  Sometimes, the required accommodation is to allow an employee not to work, while still keeping his job.

That is the message of a recently published EEOC guidance on an employer’s obligation to provide leave under the ADA.  While this may seem counter-intuitive, the obligation to provide leave as a reasonable accommodation is not really new.   But, with this recent publication EEOC appears to be sending the message that these types of claims will get priority treatment.

The following are some practical compliance and risk management tips to avoid getting in EEOC’s cross-hairs because of your leave practices and policies:

  • If you don’t offer leave as a benefit (or if employees must work a certain amount of time before becoming entitled to leave), you still must consider leave as a potential accommodation to a disability.
  • If an employee has exhausted available leave (such as FMLA), you may be obligated to provide additional leave as a reasonable accommodation.
  • You should not allow maximum or no fault leave policies to be applied without communicating with the employee and possibly considering exceptions to the policy for someone who many need additional leave as a reasonable accommodation.   Get rid of the “form” letters that are automatically sent to the employee nearing the end of the leave period.  These letters typically tell the employee to return to work by a date certain or they will be terminated.   This is a big red flag.
  • Just as with any other proposed accommodation, the interactive process is very important.   Employers should have procedures in place to both engage in the interactive process, document that it occurred, and what was the discussion.

The most important question, and the hardest to answer, is how much leave do you have to give an employee to accommodate a disability before it becomes unreasonable?  While each situation must be evaluated on a case-by-case basis (of course!), the following rules are generally applicable:

  • The employee must be allowed to exhaust legally mandated leave (e.g., FMLA).
  • The employee should be allowed to exhaust available paid leave.
  • Typically, it is not reasonable to require additional leave for a long time.  Of course, what is “long time” for one employer may not be for another.   If the employee has already been gone for twelve weeks on FMLA, it probably would not be an undue hardship to allow a couple more weeks.  A lot depends upon what needs to be done to cover for the absent employee.
  • Typically, it is not reasonable to grant additional leave for an uncertain, unknown period of time.  If a physician provides a date certain the employee can return to work, and it’s not too far in the future (see above), then it probably is reasonable to accommodate.
  • Precedent is important.   If you allowed a similar employee an additional 30 days of leave last year, you should treat this year’s request similarly.

 

On January 27, the Iowa House passed HF 681, known as the "Iowa Worker Adjustment Retraining and Notification Act".   

There is already a Federal WARN Act, which requires most employers with 100 or more employees to provide at least 60 days notice to their employees of a mass layoff or plant shutdown.  Failure to file the WARN Act requirements can result in liability for back pay and benefits for each affected employee, for the time of the violation, up to 60 days.

The proposed Iowa law is more stringent than the federal law is some respects, but more lenient in others.    It is more stringent in that is applies to employers with 25 or more employees.   It is more lenient, however, in that is requires only 30 days notice of a mass layoff or shutdown.   In addition, the penalties under the Iowa law are limited to $100 per day for each day of the violation.   There is no private right of action; the law is enforced by the Department of Work Force Development.

The bill has not passed the Iowa Senate, nor has the Governor stated publicly whether he will sign it.   Organized labor is strongly in favor of the bill.  However, given the difficult economic conditions that still exist in the State, and the Governor up for a tough re-election fight, it remains uncertain whether this bill will become law.  We will keep you posted. 

 

On October 30, the Iowa Civil Rights Commission (ICRC)  issued its annual report for 2009.   Once again this year, complaints of employment discrimination constituted the vast majority (85%) of the charges.   The non-employment charges (in the areas of credit, education, housing, and public accommodations) make up the remaining 15% of the charges.

The total number of complaints alleging employment discrimination increased by 13% over the prior year, from 1453 in 2008 to 1644 this year.   The rate of increase in charges filed with the ICRC is comparable to the increase in those filed with the federal EEOC.   Of course, most charges filed with the ICRC that alleged employment discrimination are also cross-filed with the EEOC. 

The category with the largest number of complaints was sex (717), followed by race, (694), disability (562) and age (368).   There were 55 claims of religious discrimination, and six alleging discrimination on the basis of sexual orientation or gender identity.   Despite the publicity relating to the Iowa Supreme Court’s decision legalizing marriage among persons of the same sex, there was no increase in charges in the sexual orientation category. 

The largest increase in the type of claim was retaliation.   Retaliation claims increased 30%, from 435 last year to 567 this year.   Although retaliation is a separate category of complaint, charges alleging retaliation are frequently accompanied by a charge of discrimination.

 

John Irving, former general counsel of the National Labor Relations Board, published a thoughtful opinion piece last week entitled "Don’t Employer’s Deserve Free Speech?" .  The article addresses  an important, but less well publicized, aspect of the proposed Employee Free Choice Act.  That is, stiff penalties and liquidated damages for employers found guilty of unfair labor practices.   

Mr. Irving is concerned about the fine and often vague line between an employer’s expression of an opinion or argument opposing a union, which is permitted under the law, and the threat of reprisal or promise of benefit, which is not protected.   Whether or not a particular statement, for example–"unions cause people to lose jobs"– is a protected statement of opinion or an unlawful threat, may depend upon who is sitting on the National Labor Relations Board at the time the case is decided.   The problem with the proposed EFCA, according to Irving, is that the penalties for being wrong have dramatically increased.  Section 4 of the proposed law, entitled "Strengthening Enforcement", permits fines up to $20,000 for each violation, permits the recovery of liquidated damages, and makes it easier for the General Counsel to obtain an injunction ordering an employer to cease and desist making certain statements.   Small employers in particular may be silent rather than run the risk of punitive fines.