Written Testimony of Edward Isler, Partner Isler Dare Ray Radcliffe & Connolly, P.C.

Meeting of June 8, 2011 - EEOC to Examine Use of Leave As Reasonable Accommodation

Honorable Chairperson and Commissioners,

I appreciate the opportunity to present the employer's perspective on leave as a reasonable accommodation under the Americans with Disabilities Act. Our firm, located in Tysons Corner, Virginia, serves hundreds of employers in the Mid-Atlantic region. While many of these employers might be considered large employers – those who employ more than 5,000 or 10,000 employees, the vast majority of our client base consists of small (e.g., 15 - 200 employees) and medium (i.e., 200 – 2,000 employees) sized employers.

For the entire length of my employment law career, which predates the enactment of the ADA, no federal employment statute has been more challenging for small and medium sized employers to navigate than the ADA. While one could argue that in the early 1990's employers struggled to understand the laudable goal of ceasing unlawful workplace harassment based upon sex or race or any other protected characteristic, since that time, steady, definable progress has been made as employers have implemented appropriate training, policies, complaint procedures, and remedial processes. Harassment will always be an issue in the workplace, but it is an issue employers can understand and address effectively. Similarly, although covered employers have struggled, and continue to struggle, with understanding full compliance with the Family and Medical Leave Act of 1993 (FMLA), the Act's requirements are, for the most part, fairly definable and thus subject to navigation.

To the contrary, 20 years after its enactment, many aspects of the ADA, particularly those dealing with absences purportedly necessitated by a medical condition that may or may not qualify as a disability, remain as ambiguous and ill-defined (if not more so) than when the law first became effective. For this reason, I heartily applaud the Commission's willingness to re­visit in these hearings, and likely in other forums and meetings, the guidance it is offering to the employer community. As I speak today, it is not my intent to criticize, but rather to exhort the Commission to press forward in its mission of seeking to ensure protection for those whom Congress sought to protect while not unduly burdening employers.

It is my understanding that the purpose of this hearing is to assess the EEOC's current view on addressing leave as potential reasonable accommodation and to consider whether additional guidance should be authored to enhance and ensure compliance within the employer community. With respect to the latter inquiry, I believe the answer is definitively yes, provided whatever guidance that might emerge carefully and thoughtfully reflects the needs not only of the disabled community, but of the employer community as well.

I would humbly suggest that the Commission must continue to press forward to honor the balance that was reflected in the original provisions of the ADA. The objective of the ADA is to provide otherwise qualified workers "equality of opportunity" by requiring that employers make reasonable adjustments in order to enhance opportunities for these persons without causing the employers to bear the substantial burden – in both direct costs and also indirect, intangible, but nonetheless real costs – inherent in fundamentally altering their workplace.

Small businesses struggle greatly in this country. Every year thousands are abandoned or file for bankruptcy. While some would argue that governmental red tape and bureaucracy plays a large role in these struggles, the broader reality is that the same broken, imperfect – and for employers, heavily competitive – world makes life a challenge for employers as well.

There seems to be a perception on the part of the Commission that it is "no big deal" for an employer – small, medium, or large – to hold open an absent disabled employee's position for six months, or to make due with a temporary worker, or to keep an inactive employee on the company roster, even when he shows no signs of returning to the workplace anytime soon.

Moreover, in some of the recent cases the Commission has pursued, the concept of interactive process – where the disabled employee shares the burden of communicating and engaging with the employer – seems to be lost. Rather, these cases suggest that the employer, presumably because the Commission believes it is better equipped to do so, must carry the burden of exhausting every possible means of bringing the employee to the table to discuss possible accommodations.

If the view of the Commission is that employers must make substantial (as contrasted with minor) exceptions to attendance policies and requirements that all other employees must meet, it has departed from its mission of providing the disabled person with "equality of opportunity".

As the Commission considers issuing additional guidance which addresses leave as a reasonable accommodation, it should consider the following points:

1. The Commission should embrace the position endorsed by the courts that in the vast majority of employment settings, reliable, consistent attendance is an essential function of the position.

The Commission has seemed reluctant and even oppositional to embrace the position adopted by almost every court – that with respect to most jobs, the need to be present consistently and reliably is an essential function of the position. While there certainly are exceptions – jobs that by their nature allow part-time flexibility in scheduling – this is by far the exception and not the rule. In most American workplaces, there is a need for certainty in staffing and production.

Certainly, even as an essential function, attendance is subject to some modification. Almost all employers provide some form of sick leave and recognize that occasional employee absences are a fact of life. With each employer, however, there is a point at which excessive or unplanned absences – whatever the cause – must be viewed as the employee no longer meeting the essential functions of the position.

2. The Commission should recognize and address the reality that there is a significant distinction between the burden imposed upon employers by (i) short-term block absences, (ii) long-term block absences, and (iii) ongoing unexpected and unplanned occasional but persistent absences.

Much of the guidance offered by the Commission to date on leaves fail to draw distinctions between the three types of absences outlined above. The EEOC's September 2008 guidance provides some good direction with respect to the challenges posed by an employee who takes frequent unplanned absences. See The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities, Q.20.

In many instances however, the EEOC has failed to recognize that although most small and medium size employers can plan for a block absence of reasonable duration, the employer is greatly burdened by block absences that last for more than a few months.

3. The Commission should recognize that the undue hardship analysis for employers impacted by disability-generated employee absences must be holistic and realistic.

In its October 2002 Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, the EEOC defined "undue hardship" as follows:

Undue hardship" means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.

This is a good definition, but it needs to be clarified as it applies to employee absences. In speaking with EEOC investigators from numerous offices, there appears to be a heavy presumption that an employer does not experience an undue hardship as the result of an employee who is consistently absent on an unplanned sporadic basis.

This presumption fails to recognize that these types of absences wreak havoc on an employer's ability to staff properly and service the employer's customers. Investigators should be directed to consider more fully the real life burdens on the workplace of an employee who is regularly absent due to a disability. Employers have a need for certainty in order to meet their business needs and so to survive. Customers – retail, wholesale, and even, or especially, government agencies themselves – are highly demanding and often unforgiving. All of us, at some point, have been to a restaurant or a retail establishment or a service counter and been frustrated by the poor service that has resulted seemingly from understaffing. And all of us, at some point, have exited that place of business promising ourselves that we will never visit that establishment again.

Moreover, undue hardship also can be found not simply in the employer's difficulty of meeting operational requirements of the business, but in the impact on other employees. Especially in a difficult economy, small employers, in order to stay afloat, have been compelled to stretch their current workforces, to compel them to make due with less. Employees whose absences cannot be predicted result in significant burdens on the remaining co-workers. Morale within the workplace suffers greatly due to the perception of unfair treatment within the employee base.

I am not addressing here a situation where a co-worker has been diagnosed with a life threatening illness and must undergo surgery and follow up therapeutic treatment in order not merely to return to the workplace but to survive. In those instances, you will find in the American workplace most co-workers who go above and beyond to support and care for their co-worker. Frankly, I rarely hear about those situations from our clients.

I am speaking here of those who suffer from chronic ailments who then seemingly use those chronic ailments as an excuse to carve out a schedule that is the envy of their co­workers. It is virtually impossible to quantify the deleterious effect on the workplace as other employees, who strive monthly to provide good consistent attendance, see a co­worker permitted to play by a different set of rules.

I recognize that to some extent the ADA (and certainly the FMLA) requires the employer to permit some such absences. Nonetheless, in determining whether an employee who seeks to arrive and depart as he sees fit due to his alleged disability is creating an undue hardship, the effect on the remainder of the workplace should not be lightly disregarded.

4. The Commission should recognize that its charge is to ensure "equality of opportunity" and to protect those who can perform the essential functions of their position, and be careful to refrain from pressing policies that provide employees with disabilities with significant preferences and advantages as compared to employees without any identifiable disabilities.

The crux of the issues regarding what the EEOC refers to as "inflexible" attendance and long-term leave policies is whether requiring an employer to make exceptions to its policies for employees whose absences are purportedly caused by a disability is in keeping with its mandate to provide "equality of opportunity." It appears very strongly from the Sears and Supervalu cases that the EEOC has lost sight of this mandate and are instead seeking to provide disabled persons, especially those on a long term absence from the workplace, with significantly greater opportunities than similarly situated employees whose long term absence is the result of something other than disability.

For example, envision a ten year employee in Ohio who needs to move to Arizona to care for his dying mother. Although she is in the final stages of her illness, the doctor expects her to live 6 to 9 more months. In fact, she lasts 10 months prior to passing, and the employee then remains in Arizona for another month tying up her financial affairs. In all, the employee is gone for 11 months. Few employers would be able or willing to hold open the employee's job or keep the employee on the roster for 11 months. However, it appears that the EEOC is taking the position that an employee whose absence is necessitated by his own illness would need to be accommodated either by being assured of job reinstatement or, at a minimum, being kept on the employer's roster for the duration of the leave. Such a situation does not reflect equality of opportunity for the disabled employee.

5. The Commission should recognize that an employee's length of service should play some role in determining an employer's obligation to make modifications beyond its normal attendance policies.

Not all management employment lawyers will likely agree with this point, but the practical reality is that employers should be directed to consider an employee's length of service in considering what accommodation is reasonable.

For example, an employee who has faithfully served her employer for 27 years as the executive assistant to the president discovers she has breast cancer and must undergo surgery and six months of treatment, after which it is anticipated she will be able to return to work. Depending upon other factors, it would seem likely that permitting this leave would seem to be a reasonable accommodation.

Contrast that situation with one where the employee, the president's assistant, has been employed only for six weeks before she discovers the terrible news. While anyone would be sympathetic to her situation, it does not strike me as reasonable that a job in which she has served merely for six weeks would need to be held open for her for six months.

6. The Commission should ensure that its guidance does not place a greater burden on the employer to engage in the interactive process than on the employee.

The courts have correctly recognized that, in determining reasonable accommodation, the ADA requires the employer and the employee to engage in an interactive process, and that the employer further engage in an individualized assessment of the employee's situation.

With respect to accommodating absences, however, the EEOC appears to moving in the direction of placing the burden of the interactive process in the first instance on the employer. The consent decrees obtained in the Sears case, for example, place significant burdens on the employer to initiate contact with the employee and determine the employee's ability to return to the workplace.

I recognize and agree that in some instances, employers should, prior to making any separation decision, reach out to employees who have been absent for extended periods and inquire whether the employee can return to the workplace, with or without reasonable accommodation. However, if the employee fails to respond, the employer should not be tasked with chasing down the employee or the employee's physician to ascertain whether the employee can return with some accommodation. I also believe the employer can discharge its responsibility by making it clear to the employee that the employee, at some point in the future, must contact the employer and that failure to do so may result in discontinuation of employment. The EEOC should take a stronger position in re­balancing the interactive process burden on both the employee and the employer.

These are difficult issues. We live in a world that, as wonderful a place as it can be at times, is also terribly broken and imperfect. There are many citizens whose personal medical situations have decreased or even robbed them of the ability to function as contributing members of the business community. When we hear of such situations, it is natural to desire to legislate a system where the employer community essentially serves as a safety net for those facing such difficulties.

Honorable Commissioners, when it comes to the ADA, your agency faces no easy task. Somehow you must find a pathway that allows the balancing of worthy but sometimes competing goals of enhancing the employment opportunities for those experiencing disabilities while not unduly burdening employers who often are stretched thin and struggling to make ends meet.

The purpose of the ADA was to ensure disabled persons "equality of opportunity." With all due respect, I would suggest that the perspective of the employer community – rightly or wrongly – is that the EEOC has lost sight of this goal and now views its role as elevating the needs and interests of a disabled person above that of any other employee.

It has been an honor to appear before you today and, on behalf of the employer community, I urge you to continue to pursue a course that reflects an understanding and balancing of the equally legitimate, sometimes competing, needs and interests of both the disabled community and the employer community. Thank you for your consideration of these remarks.