Written Testimony of John Hendrickson Regional Attorney, EEOC

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

Madam Chair, Commissioner Ishimaru, Commissioner Barker, Commissioner Feldblum, Commissioner Lipnic, General Counsel. I am John Hendrickson. I am Regional Attorney for the Chicago District. Thank you for asking me to speak with you about Chicago's experience in addressing discrimination at the intersection of employee leave policies and the requirements of the Americans with Disabilities Act.

This is an issue of real practical consequence for both employers and employees, and resolution of the issue in any forum is, like so many other ADA issues, "fact centric." The facts matter.

Therefore, I begin by offering a factual scenario for your consideration: A service technician works for many years for a giant retailer with a maximum one-year leave policy. If you are on leave for more than a year, you are out the door.

The service tech's job is repairing appliances like refrigerators and washing machines in customers' homes. It is physically demanding work. The service tech is injured when he falls down stairs at a customer's home. He has knee, back and ankle injuries. He can't get down on the floor and work on the innards of major appliances. He takes worker's comp leave. He asks to return to work in a job that is less physically strenuous. He applies to become both a service manager and a dispatcher—positions for which he is well qualified and which are open. The company refuses. His year runs out. Because of his disability, he can't return to his prior position. He's terminated.

Has the employer satisfied its responsibility with regard to this employee under the ADA by providing him with a fixed period of leave? After all, a year of leave does not sound ungenerous, and, as the courts have said, never having to come to work is not a reasonable accommodation.

To you, the answer is likely readily apparent. The employer did not satisfy its ADA obligations merely by placing the service tech on leave and failing to seriously consider him for a reasonable accommodation which would put him back on the job—including reassignment to another position.

That, however, was not readily apparent to Sears Roebuck. This fact scenario I've given you is the real life story of John Bava, the charging party in Chicago's systemic ADA case against Sears.

In the course of investigating the charging party's charge, we uncovered a class of employees who had been placed on leave, had never been seriously considered for a reasonable accommodation, and, after a year, were put on the street. The Sears case and a case against Supervalu, the parent company of Jewel-Osco, a Chicago area chain of grocery and drug stores, are two of the major cases addressing leave and the ADA that Chicago has litigated in the past three years. In both cases, the employers maintained leave policies that provided for "one year and you're out."

The Sears case was filed in 2004 and concluded in 2009. The experience of the charging party service technician was reflective of the experiences of a class of employees who were injured on the job, placed on leave, and were not considered for or were denied a return to work. The case was resolved by a $6.3 million consent decree. The money was distributed among 253 class members with an average class member distribution of $26,300. We believe that the Sears result is the largest stand-alone/single case Americans with Disabilities Act resolution in EEOC history.

The Supervalu case was filed in 2009 and concluded in 2010—breakneck speed as these things go. Like Sears, Supervalu maintained a one year disability leave period. EEOC alleged that Supervalu terminated employees at the end of the year rather than returning them to work with a reasonable accommodation, or considering whether there was a reasonable accommodation that could allow them to return to work prior to the expiration of the leave period.

The case was resolved by the court's entry of a $3.2 million consent decree, with the monetary relief being divided among 111 claimants so that the average award per claimant was $28,800, an increase over Sears.

As part of the injunctive relief, the Supervalu consent decree required the employer to hire a job descriptions consultant to ensure that the job descriptions accurately described the demands and requirements of its positions.

We meant to address this kind of problem: The old job descriptions included lifting requirements like 80 pounds for the check-out line cashier position. But the testimony—as well as the observations of any of us who have ever been through a grocery line—indicated that virtually no employees ever did such lifting. Instead, cashiers used a scanning wand to scan heavy purchases.

Supervalu is also required to hire a job accommodations consultant to develop a list of common accommodations that may be offered to employees with common restrictions.

The consent decree in Sears also required significant reforms. Sears was required to designate a core group who would review all requests for accommodations, and would have to authorize any terminations due to exhaustion of leave. Communications were overhauled and employees are now informed by certified mail of their right to request accommodations and the types of accommodations available, including reassignment. They are told clearly how to communicate with Sears, and of the consequences of not responding. Sears now reaches out to both the employees' doctors, who are also informed of possible accommodations, and to Sears' workers' compensation carrier, who are asked to provide Sears with any doctor's releases that they have obtained.

So what did we learn from these cases?

We in Chicago who worked on Sears and Supervalu have identified five lessons learned from the cases. I am sure there are others, but let me share these five with you.

Number One

An inflexible period of disability leave, even if substantial, is not sufficient to satisfy an employer's duty of reasonable accommodation. Employers who offer disability leave tend to see the period of that leave as all that is necessary for ADA compliance. But reasonable accommodation requires more than putting an employee on leave and waiting to see if the employee heals 100% and can return in the same job performed in the same way as before the employee went on leave. Leave may be the appropriate accommodation in some cases, but in other cases, the employer must determine whether there is any other accommodation—like reassignment or reduced hours or an assistive device—that would enable the employee to return to work.

Number Two

The appropriate length of leave under the ADA requires an individualized analysis—even when the employer has a generous fixed leave policy. Employers that offer a generous period of fixed leave may fail to engage in an individualized analysis to determine whether additional leave might be an appropriate accommodation. Leave that can never be extended is not consistent with the ADA. As a best practice, fixed leave policies should be amended to make clear that the leave period can be extended or adjusted as a reasonable accommodation where such an extension or adjustment would not result in undue hardship to the employer.

Number Three

Separating leave administration—like the administration of worker's compensation benefits or disability benefits—from ADA administration is risky for employers. There seems to be a trend toward outsourcing benefits administration for employees on leave, including the administration of worker's compensation benefits and disability benefits. Both Sears and Supervalu outsourced their benefits administration.

In practice, this means that a third-party, who is an agent of the employer, is collecting information regarding employees' health conditions and ability to work for purposes of benefits payment. Employers may maintain a separate ADA administration mechanism that considers requests for accommodation. What may result is the proverbial left hand failing to know what the right hand is doing. The information collected for benefits administration by the employer is not used by the ADA administrators at the same employer to determine if the employee on leave can be brought back to work with a reasonable accommodation.

For example, the benefits administrators receive a doctor's release with restrictions and find the restrictions sufficient to certify the continued receipt of benefits but never give the release with restrictions to the ADA administrators to determine if there is an accommodation that would enable the employee to return to work. Similarly, the benefits administrators may authorize payment for vocational rehab for an employee out on worker's comp, and even receive information about the employee's search for alternative employment, yet never inform the ADA administrators to determine if there is an alternative position open at the same employer.

Number Four

Clear lines of communication regarding reasonable accommodations are critical not only with employees on leave but also with their health care providers, supervisors and managers. Best practices require communication about the availability of reasonable accommodations with the players at all levels of the leave process. The employee should know how he or she might be able to return to work with an accommodation, even if he or she is not 100% healed. The employee's health care provider should understand the availability of alternative means of performing work so that an informed return-to-work certification can be completed. Managers, who deal with employees returning from leave, must be educated to support reasonable accommodations in the workplace to make them a reality. A successful accommodation process requires the involvement all of the players.

Number Five

The Commission occupies a unique role in litigating these cases. Proving a violation of the ADA on a large scale requires a significant investment of resources. The Sears and Supervalu cases both required the taking of over 100 depositions. In Supervalu, given the tight discovery schedule, we utilized the national law firm model to staff depositions with lawyers from around the Midwest. Few private plaintiffs' attorneys have been willing or able to invest these resources. In the end, we may be the only major case game in town. EEOC litigation remains absolutely critical in combating systemic employment discrimination in violation of the Americans with Disabilities Act.