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By: Paul H. Derrick
The Equal Employment Opportunity Commission has sued an employer in Hawaii over its refusal to provide additional leave time as an accommodation for disabled employees who were unable to return to work without limitations after exhausting all of their FMLA leave. The lawsuit is certainly not the first of its kind, and it underscores an issue that too many employers seem to either ignore or misunderstand.
According to the EEOC, the employer in this latest case maintained a rigid leave policy under which employees with disabilities were not granted any additional leave of absence as a reasonable accommodation beyond the required 12 weeks under the Family and Medical Leave Act. Instead, they were required to return to work without limitations at the end of that leave. Those who could not were terminated. The lawsuit seeks back pay and benefits, along with compensatory and punitive damages for one named employee and a class of aggrieved individuals, as well as injunctive relief intended to prevent any future discrimination in the workplace.
The EEOC and many courts have long taken the position that inflexible leave policies violate the Americans with Disabilities Act because the ADA requires employees to engage in an interactive process with disabled employees who ask for reasonable accommodations that are likely to enable them to return to work. Sometimes, an additional period of leave, although not an indefinite one, can be a reasonable accommodation, and employers who refuse to consider that option do so at their own peril. Maintaining a rigid leave policy such as the one alleged in this new lawsuit can be seen as unlawful disability discrimination because the employee may be denied a reasonable accommodation that would enable them to return to work.
Employers have different obligations under the FMLA and ADA, and meeting the FMLA obligations by providing 12 weeks of protected leave does not meet the ADA’s requirement that an employer consider reasonable accommodations, when requested. Again, an additional, limited period of leave may be a reasonable accommodation, depending on the circumstances.
Employers also should be aware that this issue is not likely to go away any time soon. Addressing disability discrimination in the form of inflexible leave policies is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan, so we can expect more cases like this one in the future.
If you have any questions or would like more information, please contact Paul Derrick at [email protected].