Written Testimony of Christopher Kuczynski Assistant Legal Counsel, EEOC

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

Introduction

Madam Chair and Commissioners: I am happy to speak with you today on the issue of leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) – an issue that, as John Hendrickson will describe in his testimony on EEOC's litigation efforts, has a real-world impact on people with disabilities. I can also tell you from my personal experience, having made probably hundreds of presentations on the topic of reasonable accommodation since coming to the Commission in 1997, that the obligation to provide leave as a reasonable accommodation is a topic of concern and sometimes confusion on the part of employers and people with disabilities.

The Commission has said quite a bit on this subject, clarifying the most important issues. I want to review somewhat comprehensively the policy positions the Commission has taken, particularly in the Interpretive Guidance to its regulations implementing Title I of the ADA, 29 C.F.R. pt. 1630, app, §§ 1630.2(o) and 1630.9 ("Interpretive Guidance"), and in its Enforcement Guidance on Reasonable Accommodation and Undue hardship Under the Americans with Disabilities Act, http://www.eeoc.gov/policy/docs/accommodation.htm (rev. 2002) ("Reasonable Accommodation Guidance"). I also want to discuss, to the extent they are relevant, statements in technical assistance publications, such as the 2008 publication, the ADA: Applying Performance and Conduct Standards to Employees with Disabilities, http://www.eeoc.gov/facts/performance-conduct.html, and in letters authored by the Office of Legal Counsel (OLC) in response to stakeholder requests for technical assistance. Though not voted on as Commission policy, and therefore not entitled to the level of deference that regulations and sub-regulatory guidance are, the technical assistance documents and informal discussion letters are designed to apply the Commission's regulations and sub-regulatory guidance to specific factual situations.

Basic Principles on Leave as a Reasonable Accommodation

EEOC first recognized that use of accrued paid leave or additional unpaid leave may be a reasonable accommodation under the ADA in the Interpretive Guidance. 29 C.F.R. pt. 1630 app. § 1630.2(o). There, the Commission acknowledged that leave might be provided as an accommodation for treatment related to a disability. In EEOC's Technical Assistance Manual, published shortly after the regulations and interpretive guidance, and its Reasonable Accommodation Guidance, first published in 1999 and revised in 2002,the Commission recognized other reasons why leave might be needed – to obtain medical treatment, recover from an illness or episodic manifestation of a disability, receive disability-related training (e.g., on how to use a service animal), make repairs to equipment or devices (e.g., an accessible vehicle or prosthetic limb), or avoid temporary adverse conditions in the workplace. See A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act (1992) § 3.10(4); Reasonable Accommodation Guidance at text preceding Q&A 17.

Many requests for leave from individuals with disabilities can be handled under an employer's regular leave policies. Reasonable accommodation issues arise when an employer would not ordinarily allow the leave. For example, "no fault" leave policies, under which an employee is automatically terminated after using a certain amount of leave, must be modified as a reasonable accommodation, absent undue hardship, if an employee with a disability needs additional leave. Id. at Q&A 17. Leave may also have to be provided as a reasonable accommodation for an employee with a disability who fails to meet an eligibility criterion that an employer imposes on all employees requesting leave, such as a requirement that an employee have worked for a certain period of time before accruing leave.

Because this appears to have been an area of some misunderstanding, it is important here to emphasize the Commission has not taken the position that such uniformly applied leave policies automatically violate the ADA. In the Interpretive Guidance, the Commission explicitly stated that uniformly applied leave policies, which may include "no fault" leave policies, and "no leave" policies, such as those restricting eligibility for leave to employees who have worked for a certain period of time

are . . . not subject to challenge under the adverse impact theory. However, an employer . . . may, in appropriate circumstances, have to consider the provision of leave to an employee with a disability as a reasonable accommodation, unless the provision of leave would impose an undue hardship.

29 C.F.R. pt. 1630, app. § 1630.15(b) and (c) (discussing defenses to claims of disparate impact). The Commission's Reasonable Accommodation Guidance further states that where an employee needs more leave than is allowed under a "no-fault" leave policy because of a disability, an employer must "modify its policy to provide the employee with the additional leave," unless there is another effective accommodation or modifying the policy would result in undue hardship." Reasonable Accommodation Guidance at Q&A 17.

Rights of Employees During and After Leave as a Reasonable Accommodation

Employees are only entitled to be paid while on leave as a reasonable accommodation to the extent they have accrued paid leave (whether sick leave or other time off). When an employee has exhausted all available accrued leave, any additional leave is unpaid. See Reasonable Accommodation Guidance, at text preceding Q&A 17. And an employer is only required to continue the health insurance benefits of an employee on leave as a reasonable accommodation if it would do so for employees on leave for other reasons. See "The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964, http://www.eeoc.gov/policy/docs/fmlaada.html, (1995) ("Fact Sheet on FMLA, ADA, and Title VII"), at Q&A 15.

An employer may not penalize an employee who has taken leave as a reasonable accommodation. For example, terminating an employee who failed to meet an annual sales quota because she took five months of leave as a reasonable accommodation, without taking into account the employee's productivity during the time she did work, may constitute retaliation for the employee's use of an accommodation to which she was entitled under the ADA and will also render the accommodation ineffective. See Reasonable Accommodation Guidance at Q&A 19.

Absent undue hardship, an employee must be returned to his or her original position following a period of leave as a reasonable accommodation. If returning the employee to the original position would result in undue hardship, the employer must determine whether there is another position to which the employee could be reassigned. Id. at Q&A 18. Like any reassignment, the new position must be vacant and must be equivalent to the original one, or as close as possible if no equivalent position is available. The employee must be qualified for the new position. Id. at text preceding Q&A 25.

Choosing Between Leave and Other Accommodations

Generally, where more than one reasonable accommodation is possible, an employer should give primary consideration to the choice of the individual with a disability, but ultimately may choose the accommodation (e.g., one that is less costly or burdensome to provide), as long as it is effective. 29 C.F.R. pt. 1630 app. § 1630.9; Reasonable Accommodation Guidance at Q&A 9. Accordingly, the Commission has stated that an employer may provide an accommodation that enables an employee to work in lieu of leave, if the accommodation would allow the employee to meet medically related needs. Thus, in its Reasonable Accommodation Guidance, the Commission offered an example of a situation in which an employee asked for ten weeks of leave for surgery and recuperation related to a disability, but said that he could return after seven weeks if, during his first three weeks back, marginal functions that required excessive walking were removed. The Commission concluded that this accommodation would be effective. See Reasonable Accommodation Guidance at Q&A 20, Ex. A. However, an employer's proposal to provide certain equipment for an employee as an alternative to granting her leave to have surgery for a disability that has worsened would not be effective. See id. at Q&A 20, Ex. A and B. Nor may an employer require an individual who is entitled to leave under the FMLA to accept an accommodation in lieu of leave. See Fact Sheet on FMLA, ADA, and Title VII at Q&A 18.

In some instances, employers may want to place an employee on leave or require an employee to remain on leave, even though a reasonable accommodation is available that would enable the employee to remain at or return to work. An OLC informal discussion letter responding to a stakeholder inquiry concerning just such a situation says providing leave under these circumstances would not be an effective accommodation. See Letter dated September 27, 2001, http://www.eeoc.gov/foia/letters/2001/ada_reas_accomm_5.html (stating that requiring an employee to take a leave of absence and back-filling her job was not an effective accommodation when telework would have enabled the employee to continue working).

ADA and FMLA Issues

One of the most important areas the Commission has been questioned about by employers over the years is the relationship between the ADA's obligation to provide leave as an accommodation and the requirements of the FMLA. The first publication to speak to this issue was the fact sheet explaining the relationship between the FMLA, the ADA, and Title VII. The fact sheet explains that the FMLA regulations require that when an employee is entitled to leave under both the FMLA and the ADA, the employer should provide the leave under whichever statutory provision provides the greatest rights. See Fact Sheet on FMLA, ADA, and Title VII at Q&A 16 (citing 29 C.F.R. 825.702(a), (b)-(e)). The Commission's Reasonable Accommodation Guidance also includes several questions and answers on the relationship of the two statutes. Among other things, the Commission explains in the guidance that the ADA may require an employer to provide leave in addition to the 12 weeks available under the FMLA, but the FMLA leave may be considered in determining whether granting additional leave as a reasonable accommodation would result in undue hardship. See Reasonable Accommodation Guidance at Q&A 21, Ex. A.

A later technical assistance document points out that unlike the FMLA, the ADA does not require an employer to provide time off as a reasonable accommodation for an employee to care for a family member or other individual with whom the employee has a relationship or association. However, an employer would have to provide leave to such an employee on the same terms as it normally provides leave to employees who need to care for someone who is ill. See Questions and Answers About the Americans with Disabilities Act's Association Provision, http://www.eeoc.gov/facts/association_ada.html#_ftn4, (2005) at Q&A 4; Fact Sheet on FMLA, ADA, and Title VII at Q&A 19.

Undue Hardship Issues

Like any other reasonable accommodation, leave need not be provided if it would result in undue hardship. 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a). The term "undue hardship" means significant difficulty or expense for the employer. The ADA and EEOC's regulations outline the factors to be considered in assessing undue hardship:

(i) the nature and cost of the accommodation . . .;

(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

42 U.S.C. § 12111(10)(B); 29 C.F.R. § 1630.2(p). . To these four factors, the Title I regulations add a fifth – "[t]he Impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business." 29 C.F.R. § 1630.2(P)(2)(v).

Rarely is cost asserted as an undue hardship to providing leave as an accommodation. Rather, as the Commission has emphasized in the Reasonable Accommodation Guidance, "[i]n certain circumstances, undue hardship will derive from the disruption to the operations of the entity that occurs because the employer can neither plan for the employee's return nor permanently fill the position." Reasonable Accommodation Guidance at Q&A 44. In a 2005 informal discussion letter, OLC said that undue hardship related to leave may depend on such factors as the employer's ability to have the employee's duties performed in her absence and the consequences to the employer's business if it could not. See Letter of February 3, 2005, http://www.eeoc.gov/eeoc/foia/letters/2005/ada_reas_accomm.html.

Recognizing that it is not always possible to provide an exact return date when leave is initially requested, and that complications related to treatment of, and recuperation from, the effects of a disability may necessitate revising a projected leave date, the Commission stated, in its Reasonable Accommodation Guidance, that leave with an approximate return date or a range of return dates, rather than a fixed date of return, may be a reasonable accommodation. Where an employer has determined it can grant such leave, "the employer has the right to require, as part of the interactive process that employers and employees should undertake to determine an appropriate accommodation, that the employee provide periodic updates on his/her condition and possible date of return. After receiving these updates, employers may reevaluate whether continued leave constitutes an undue hardship." Id. Most critical here is regular communication between the employer and the employee during the period of leave.

A technical assistance document, published in 2008, describing how the ADA governs performance and conduct standards observed that indefinite leave would result in undue hardship. See The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, http://www.eeoc.gov/facts/performance-conduct.html at Q&A 21 (2008) ("Performance and Conduct"). Question 21, however, is careful to point out that indefinite leave involves situations in which an employee can give no indication of if or when he or she will be able to return to work, and is careful to distinguish between such a situation and one in which an employee is only able to give an approximate date of return or a range of possible return dates. Id. The answer to Question 21 also makes clear that reasonable accommodation may require granting additional leave beyond that which was originally requested, whether the original request provided a specific return date, an approximate return date, or a range of return dates. See id. ("If the approximate date of return or the estimated time period turns out to be incorrect, the employer may seek medical documentation to determine whether it can continue providing leave without undue hardship or whether the request for leave has become one for leave of indefinite duration.").

Although they have sometimes been read as inconsistent with one another on the issue of indefinite leave, the Reasonable Accommodation Guidance and the technical assistance document on Performance and Conduct can be harmonized. Both documents allow for the possibility that a request for leave may not include an exact date of return and that an initial leave request may need to be revised. Neither document, however, says that an employer must grant leave where an employee can give no indication of whether he or she will ever be able to return to work.

Certainly, issues of undue hardship may arise in situations other than those involving indefinite leave. The Commission's Reasonable Accommodation Guidance says that even a relatively short period of leave may result in undue hardship where, for example, the highly specialized nature of a job makes it impossible to find someone to fill in on a temporary basis. See id. at Q&A 44, Ex. A (even relatively short period of leave may be undue hardship where employer is unable to fill the position of an experienced chef at a top restaurant on a temporary basis).

Leave may also be an undue hardship where it occurs with some frequency, over an extended period of time, and often without advance notice. As explained in Performance and Conduct:

The chronic, frequent, and unpredictable nature of such absences may put a strain on the employer's operations for a variety of reasons, such as the following:

an inability to ensure a sufficient number of employees to accomplish the work required;

a failure to meet work goals or to serve customers/clients adequately;

a need to shift work to other employees, thus preventing them from doing their own work or imposing significant additional burdens on them;⁷⁴

incurring significant additional costs when other employees work overtime or when temporary workers must be hired.

Performance and Conduct at Q&A 20.

Documenting Leave Requests and Usage

Employers may ask employees to document requests for, or use of, leave in three situations: (1) when leave is requested under the FMLA; (2) when an employee asks for leave under an employer's policy that requires all employees to provide documentation to support the use of leave; and (3) when an employee requests leave as a reasonable accommodation.

FMLA requests for leave present the easiest case. If an employee is invoking rights only under the FMLA , an employer may obtain only the documentation necessary to substantiate a request for leave under that statute. See Fact Sheet on FMLA, ADA, and Title VII at Q&A 16.

Requests for documentation pursuant to an employer's own leave policy present more complicated issues. EEOC has said that an employer may ask an employee to provide a doctor's note or other documentation to substantiate the use of sick leave, if it has a policy of asking all employees who request sick leave to do so. See Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), http://www.eeoc.gov/policy/docs/guidance-inquiries.html (2000) ( "Employee Guidance") at Q&A 15. The Commission has not, however, defined precisely how much information an employer is entitled to obtain in support of the leave request, such as whether the employer can require that the documentation include a diagnosis where the amount of leave used is relatively brief. This issue has been the subject of recent judicial attention, most notably in Lee v. City of Columbus, 24 A.D. Cas. (BNA) 257, 2011 WL 611904 (6th Cir. Feb. 23, 2011), wherein the Sixth Circuit held that Section 504 of the Rehabilitation Act allowed a municipal employer to ask that documentation including a diagnosis be provided for leave requests of three days or more.

In an October 5, 2004 letter, OLC said that requesting an employee's entire medical record in response to a request for sick leave would violate the ADA, as it would include information unrelated to the particular condition for which leave was requested. Additionally, such a request cannot be justified, even when made of someone in a job that involves ensuring the safety of others (the job at issue in the letter was an airline pilot) where the employee was working for a year or more after the leave request was made. Finally, according to the same letter, an employer would be justified in asking for more documentation to support the leave request of a particular employee than is normally required under the employer's leave policy in three situations: (1) where the initial documentation provided gives rise to a reasonable belief that, due to a medical condition, the employee will be unable to perform essential job functions or will pose a direct threat; (2) where leave is being requested as a reasonable accommodation; and (3) to support a longer leave request (even if it is not leave as a reasonable accommodation) or where leave abuse is suspected. See Letter of October 5, 2004, http://www.eeoc.gov/eeoc/foia/letters/2004/ada_inquiries_examinations_2.html.

When an employee requests leave as a reasonable accommodation, the usual requirement concerning documentation of disability and the need for accommodation apply: the employer may require sufficient documentation showing that the employee has a disability under the ADA (where the disability is not obvious or already known) and needs the accommodation. The amount of documentation requested must be reasonable. It must relate to the specific condition for which leave has been requested. It may not, for example, include the employee's entire medical record or the results of all medical procedures and examinations related to the condition at issue. See Reasonable Accommodation Guidance at Q&A 6-8.

As earlier noted, an employer may ask for periodic updates on the health of an employee who has been granted leave without a fixed date of return. However, when an employer has granted a fixed period of extended leave and the employee has not requested additional leave, periodic updates are not permitted. Employers may, of course, call employees on extended leave to check on their progress (e.g., ask them how they are doing) or to express concern about their health. See Employee Guidance at Q&A 16.

Return to Work Issues

Since the ultimate goal of providing leave as a reasonable accommodation is to enable an individual with a disability to work, we cannot ignore one last issue – the extent to which employers may obtain documentation or require a medical examination from someone returning to work following a period of leave. When an employee is returning from leave (whether granted as a reasonable accommodation or pursuant to a leave policy applicable to all employees), an employer may make disability-related inquiries or require a medical examination if the employer has a reasonable belief that the employee will be unable to perform essential functions due to a medical condition or will pose a direct threat due to a medical condition. Any inquiry or examination, however, must be limited in scope to what is needed to make an assessment of the employee's ability to work. Usually, inquiries or examinations limited to the specific medical condition for which the employee took leave will be all that is warranted. See Employee Guidance at Q&A 17.

Conclusion

I again want to thank you for letting me testify about an issue that is of critical importance to ensuring equality of opportunity in the workplace for many people with disabilities. I will be happy to answer any questions you may have.