Written Testimony of Claudia Center, Director Disability Rights Program Legal Aid Society -- Employment Law Center

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

Good morning. I am delighted to join you all today to discuss the important topic of leaves of absence as a reasonable accommodation for working people with disabilities. A leave of absence for treatment and recovery is one of the most common forms of accommodation sought by the low-wage workers with disabilities served by my office.

A leave may be required for virtually any type of disability, but is commonly needed by our clients with cancer, psychiatric conditions, liver failure, kidney disorders, mobility disabilities, and on-the-job orthopedic injuries. A few recent examples from our case files include:

A monolingual Vietnamese welder with 24 years' seniority who required a leave from his job to receive a liver transplant due to organ damage caused by hepatitis – a condition common among Asian Americans who were born and raised abroad.

A bank teller and Iraq war veteran who required a leave of absence to receive treatment for his combat-related PTSD.

A monolingual Cantonese-speaking janitor for a chain of fitness centers who took a leave to receive treatment for colon cancer, but was terminated when she was released by her doctor to return to work.

A monolingual Spanish speaking lettuce picker with 11 years' seniority who was fired by a large agribusiness company while on a leave of absence for her depression.

An electrician with macular degeneration who required a leave for mobility training (training to learn how to traverse one's environment with impaired vision).

An equipment installer with more than 25 years' seniority who needed a leave to recover from an on-the-job back injury, but who was terminated when he tried to return to work.

A mailroom worker with an anxiety disorder who required a leave of absence for treatment following an adverse reaction to a new medication.

Leaves of absence are critical for retaining countless numbers of people with disabilities within the workforce. At the same time, a leave of absence is not an end in and of itself. The purpose of a reasonable accommodation leave of absence is to enable the employee to receive treatment (or training), recover and return to work. That is the essence of an effective accommodation. The entire purpose of the leave is vitiated if the employee recovers but is terminated or otherwise barred from returning to work. Such a leave is just a bridge to nowhere. This result occurs far, far too often.

I would like to reiterate today a few of the basic principles that govern the reasonable accommodation of a leave of absence, and which are critical to the client communities we serve. We welcome the EEOC's leadership in developing guidance that contains these principles in a single document.

A Leave of Absence Is a Recognized and Necessary Form of Reasonable Accommodation.

The ADA does not explicitly list a leave of absence as a form of reasonable accommodation. However, the accommodation of a leave of absence has been repeatedly recognized by the EEOC. See, e.g., 29 C.F.R. App. § 1630.2(o) ("[O]ther accommodations could include permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment[.]"); EEOC Technical Assistance Manual on the Employment Provisions (Title I) of the ADA (1992), at III-6 (listing "permitting use of accrued paid leave or unpaid leave for necessary treatment" as example of reasonable accommodation), III-23-24 (describing leave as reasonable accommodation for a number of reasons related to disability, including medical treatment related to the disability, repair of a prosthesis or equipment, temporary adverse conditions in the workplace, and training in the use of an assistive device or guide dog); EEOC, Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Oct. 17, 2002), section entitled "Leave" and questions 17-21.

The accommodation of leave and extensions of leave is also well established by case law decided under the ADA and the Rehabilitation Act. See Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000) ("This court and others have held that a medical leave of absence – Garcia's proposed accommodation – is a reasonable accommodation under the Act in some circumstances."); Ralph v. Lucent Technologies, 135 F.3d 166, 171-72 (1st Cir. 1998) ("The defendant argues that it has already made a reasonable accommodation to the plaintiff's disability by giving him 52 weeks of leave with pay, plus changing his work assignment and supervisor. The duty to provide reasonable accommodation is a continuing one, however, and not exhausted by one effort.") (upholding injunction granting four-week leave extension); Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir. 1998) ("A leave of absence and leave extensions are reasonable accommodations in some circumstances."); Walton v. Mental Health Ass'n. of Southeastern Pennsylvania, 168 F.3d 661, 671 (3d Cir. 1999) (acknowledging that "unpaid leave supplementing regular sick and personal days might, under other facts, represent a reasonable accommodation," but affirming because "Walton's requested accommodation – continued leave – would have created an undue burden on MHASP"); Cehrs v. Northeast Ohio Alzheimer's Research Ctr., 155 F.3d 775, 782-83 (6th Cir. 1998) ("Medical leave as an accommodation is not a novel concept. … [A] medical leave of absence can constitute a reasonable accommodation under appropriate circumstances."); Rogers v. Lehman, 869 F.2d 253, 259 (4th Cir. 1989) (finding that under section 501 of the Rehabilitation Act, the agency must "afford [an employee with alcoholism] an opportunity to participate in an inpatient program, using accrued or unpaid leave, unless the agency can establish that it would suffer an undue hardship from the employee's absence."); Haschmann v. Time Warner Entm't Co., 151 F.3d 591, 601-02 (7th Cir. 1998) ("We conclude that a jury reasonably could determine that her requested short-term leave of absence would not be an undue hardship on Time Warner to provide."); Humphrey v. Memorial Hospitals Ass'n, 239 F.3d 1128, 1135-36 (9th Cir. 2001) ("A leave of absence for medical treatment may be a reasonable accommodation under the ADA."), cert. denied, 122 S.Ct. 1592 (U.S. 2002); Nunes v. Wal-Mart Stores, 164 F.3d 1243, 1247 (9th Cir. 1999) ("Unpaid medical leave may be a reasonable accommodation under the ADA. Even an extended medical leave, or an extension of an existing leave period, may be a reasonable accommodation if it does not pose an undue hardship on the employer.") (citation to regulatory appendix omitted); Rascon v. U.S. West Communications, Inc., 143 F.3d 1324, 1333-34 (10th Cir. 1998) ("An allowance of time for medical care or treatment may constitute a reasonable accommodation.").

Currently, the EEOC's guidance on leaves of absence appears in several different documents. It would be helpful to have a unified guidance document focused on the issues associated with the reasonable accommodation of leave.

Barring Undue Hardship, Leave Should Be Granted Whenever It Would Plausibly Allow the Employee to Recover and Return to Work.

Barring undue hardship, a leave of absence should be granted whenever it would plausibly allow the employee to recover and return to work. Humphrey, 239 F.3d at 1135-36 ("[T]he ADA does not require an employee to show that a leave of absence is certain or even likely to be successful to prove that it is a reasonable accommodation. … 'As long as a reasonable accommodation available to the employer could have plausibly enabled a handicapped employee to adequately perform his job, an employer is liable for failing to attempt that accommodation.'") (citing and quoting from Kimbro v. Atlantic Richfield Co., 889 F.2d 869 (9th Cir.), cert. denied, 498 U.S. 814 (1990)); Kimbro, 889 F.2d at 878-79 ("As long as at the time of Kimbro's termination, there were 'plausible reasons to believe that the handicap [could have been] accommodated' by the a leave of absence, ARCO is responsible for its failure to offer such a leave. … While it is altogether possible that Kimbro's migraine episodes may have recurred upon his return to work following a leave of absence, such a possibility does not foreclose a finding of liability for failure to accommodate Kimbro's migraines in 1981. As long as a reasonable accommodation available to the employer could have plausibly enabled a handicapped employee to adequately perform his job, an employer is liable for failing to attempt that accommodation.") (citing and quoting from Prewitt v. United States Postal Service, 662 F.2d 292, 310 (5th Cir.1981)).

This standard is critical because no worker can predict with total certainty the outcome of future medical treatment and recovery. As long as it is plausible that the leave will be effective, the employee should be deemed to be a qualified individual entitled to the accommodation.

Any guidance on leaves of absence as a form of accommodation should reiterate that, barring undue hardship, a leave of absence is a required form of reasonable accommodation whenever it would plausibly enable the disabled worker to recover and return to work.

An Employer Policy Regarding Leaves of Absence May Be Evidence That a Leave Consistent with the Policy Is Not an Undue Hardship.

An employer's leave policy may provide important evidence in support of the employee's position that a leave consistent with the policy did not impose an undue hardship. See Nunes, 164 F.3d at 1247 ("An issue of fact also exists as to whether the accommodation sought [extension of leave totaling nine months] would impose an undue hardship on Wal-Mart. Weighing against Wal-Mart on these issues are its stated benefits policy that eligible employees could take up to one year of unpaid medical leave, and its regular practice as a large retailer of hiring temporary help during the holiday season.").

The EEOC should state that the existence of an employer policy permitting the leave is evidence that the leave does not impose an undue hardship.

An Employer Policy Defining a "Maximum" Length of Leave is Subject to Modification, and the Application of Such a Policy to Automatically Terminate an Employee After a Certain Length of Time Can Violate the ADA When the Employee Needs Additional Leave.

At the same time, an employer may be required to provide as a reasonable accommodation a leave that is longer than the maximum leave permitted under its internal policy. 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2)(ii); U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397-98 (2002) (discussing need to modify an employer's neutral rules as a form of reasonable accommodation, and citing Garcia-Ayala as "requiring leave beyond that allowed under the company's own leave policy"); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st Cir. 2000) ("The company's apparent position that the ADA can never impose an obligation on a company to grant an accommodation beyond the leave allowed under the company's own leave policy is flatly wrong under our precedent.").

Existing EEOC guidelines properly prohibit the application of policies automatically terminating employees after they have been on leave for a certain period of time, when the employee requires a longer leave that does not impose an undue hardship. Consistently, the EEOC prohibits employer policies or practices that penalize an employee for missing work during a reasonable accommodation leave. EEOC Enforcement Guidance, Reasonable Accommodation and Undue Hardship, pages 27-29, questions 17, 19; accord 42 U.S.C. § 12203(a), (b). (In some cases, where certain forms of compensation are tied to performance and/or active service, a pro rata payout to an employee on leave may be lawful and not a penalty.)

Any guidance document focused upon leaves of absence should reiterate that leaves granted as a reasonable accommodation under federal law cannot be limited by an employer's internal policy. As well, such guidance should restate that employees cannot be penalized for taking a leave as a reasonable accommodation.

Leaves of Absence May Be Required Beyond the Twelve Weeks Granted by the Family and Medical Leave Act.

Leaves beyond the 12 weeks granted by the Family and Medical Leave Act (FMLA) may be required as a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (March 1, 1999), question 21; EEOC, Factsheet, The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964.

Many employers improperly terminate employees who have exhausted their FMLA leave entitlement without considering the role of a further leave under the ADA. An employee who has exhausted his or her 12-week FMLA leave entitlement may still be eligible for an extension of the leave under the ADA.

Although this rule has been stated by the EEOC, it should be reiterated in any guidance devoted to leaves of absence as a reasonable accommodation. The abrupt termination of employees upon the exhaustion of their FMLA leave entitlement continues to be a barrier to employment for many people with disabilities.

Employers Should Cooperate With Employees to Maintain Their Health Benefits During Leaves of Absence.

In contrast to the FMLA, the ADA does not specifically require employers to pay for or maintain the health benefits of their employees during unpaid leaves of absence. Nevertheless, access to health benefits is a critical "benefit and privilege of employment," see 29 C.F.R. § 1630.2(o)(iii), particularly during a medical leave of absence.

Where provided by its own policies, an employer should continue an employee's health benefits during a medical leave of absence. Where there is no policy, an employer should cooperate with its employee to explore means to maintain his or her health coverage consistent with applicable laws, including by having the employee pay toward the employer's share of premiums. The EEOC should include such cooperation in drafting any guidance regarding leaves of absence.

Lengthy Leaves of Absence, and Extensions of Leaves of Absence, May Be a Required Accommodation.

There is no particular temporal point that defines the outer boundary of a required reasonable accommodation leave of absence. Rather, under particular facts, lengthy leaves of absence – including leaves longer than one year – may be a required form of reasonable accommodation. See, e.g., Nunes v. Wal-Mart Stores, 164 F.3d 1243, 1247 (9th Cir. 1999) ("Even an extended medical leave, or an extension of an existing leave period, may be a reasonable accommodation if it does not pose an undue hardship on the employer."); Cehrs v. Northeast Ohio Alzheimer's Research Ctr., 155 F.3d 775, 782 (6th Cir. 1998) (there should not be a "per se rule that an unpaid leave of indefinite duration (or a very lengthy period, such as one year) could never constitute a 'reasonable accommodation' under the ADA"); Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 171-72 (1st Cir. 1998) (upholding preliminary injunction requiring further accommodation beyond 52-week leave of absence); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646-49 (1st Cir. 2000) (upholding leave five months longer than one-year granted by employer's policy).

The EEOC should emphasize that leaves should be granted or extended so long as the employee will plausibly return to work, and the employer is not experiencing undue hardship. Where there is no undue hardship, the EEOC should explain, long leaves including leaves longer than one year may be required.

The Interactive Process Becomes Critically Important at the End of an Employee's Leave of Absence.

The purpose of a reasonable accommodation leave of absence is to enable the employee to recover and return to work. That is the essence of an effective accommodation. The entire purpose of the leave is vitiated if the employee recovers but is terminated or is otherwise not permitted to return to work.

Unfortunately, it is common for an employee with a disability to experience job loss at the end of a leave, just as the worker is taking steps to return to work. Often, reinstatement is possible, but the communication critical to reinstatement does not occur. Without a presence at the job site, and at times directed to communicate with a third-party administrator, see infra, the employee may have little opportunity to articulate his or her intentions and needs. In addition to causing the devastating effects of job loss, these far-too-typical situations are often the subject of protracted litigation.

For this reason, the EEOC should emphasize in any guidance about leaves of absence that the interactive process is ongoing and becomes critically important toward the end of an employee's leave. Employers must take affirmative steps to communicate with employees who are approaching the end of their scheduled leaves regarding their intentions and ability to return to work. Such communication should review whether and when the employee can return, and explore whether additional reasonable accommodations are needed, such as a further extension of leave, a modified schedule, or another form of accommodation. If additional information is needed to determine whether the employee will be reinstated, such as a fitness-for-duty assessment, any leave must be automatically extended while such information is gathered.

The Interactive Process and Third-Party Administrators.

Some employers and particularly larger employers utilize third parties to assist them with leave management. The use of these third parties can complicate and impede the communication critical to enabling the worker to return to his or her employment following a reasonable accommodation leave of absence.

In many situations, the administrator may communicate only that the employee continues to be unable to return to work. This information may be incomplete. The administrator might have further information about the employee's preparations to return to work (e.g. by participating in a "work hardening" program), or the employee's needs for further accommodation (e.g. is facing further treatments that would require a leave extension, or a modified schedule upon return, or is reviewing vacancies to locate a required transfer). Often the employee is directed to communicate with the leave administrator, but is unaware that the leave administrator is only communicating some of the information to the employer.

Alternatively, the leave administrator might be in the midst of gathering additional information necessary to the accommodation process, a process that may require additional time and a corresponding extension of leave. Despite the need to obtain and assess such information, the third-party administrator is typically instructed to follow the employer's fixed leave policy, such as a "12 months and out" policy, without exception, even while the information gathering is ongoing.

The EEOC should direct employers that utilize leave administrators to take the steps necessary to ensure an effective interactive process during and at the end of an employee's scheduled leave. For example, an employer should require its leave administrator to provide not only a "yes" or "no" answer to whether the employee can return to his or her current position on the stated return-to-work date, but also information about whetfher the employee is preparing to return to work, and whether the employee requires additional accommodation.

If the relay of such information proves cumbersome, the employer should take steps to communicate directly with the employee, particularly at the end of the scheduled leave but before any steps are taken toward termination.

The Interactive Process and Third-Party Fitness for Duty Examiners.

Toward the end of an employee's leave of absence, an employer may rely upon a fitness-for-duty examiner to conduct an assessment of whether the employee is able to return to work. Under particular facts, such an assessment may be permitted as a "job related and consistent with business necessity" medical inquiry. See 42 U.S.C . § 12112(d)(4). Where such an assessment is needed, any leave of absence must be extended pending the results.

In this context, the examiner should share with the employer necessary information, including conclusions, about the employee's ability to return to work, with or without reasonable accommodation. At the same time, intimate medical information unrelated to employment that is gathered by the examiner – regarding, for example, medical and social history, symptoms and/or treatments of the disability – should not shared with the employer. The employer need not know such details. Id.; see also 29 C.F.R. § 1630.14 & App.

The EEOC should direct employers that utilize fitness-for-duty examiners to seek reports appropriately tailored to the employer's "need to know." As well, the EEOC should remind employers that any leave of absence must be extended until the results of the assessment are received and reviewed.

The Interactive Process and Miscommunication.

As stated, it is common for job loss to occur at the end of an employee's leave when communication between the parties is incomplete. Several circuit courts have adopted the rule that if miscommunication interferes with the interactive process, the employer must reconsider its decision, even if information is received after termination. See Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998) ("IBM was on notice that Criado was suffering from a mental impairment and that she needed time to adjust to her exacerbated condition. … If the termination was the result of a communication mistake Criado should have been reinstated once her physician explained her condition and prognosis and asked for additional leave."); Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 783-84 (6th Cir. 1998) (citing Criado and reasoning: "But even if we were to assume that Beil did not find out about the notes until March, Northeast still had the opportunity to reconsider its adverse employment action when Cehrs followed Sladewski's advice and reapplied for a position shortly after she was terminated."); Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir.1996) (holding that although physician's letter requesting an accommodation for disabled employee came after employer's decision to terminate, employer should have "reconsider[ed] the decision to terminate his employment").

In any guidance regarding leaves of absence, the EEOC should adopt this rule. It will prevent unnecessary job loss and related litigation.

Burdens of Proof and Employer Defenses.

Although courts and the EEOC have at times used imprecise language, the burdens of proof governing reasonable accommodation cases regarding leaves of absence is the framework set forth in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) and Humphrey v. Memorial Hospitals Ass'n, 239 F.3d 1128 (9th Cir. 2001).

Construing the phrases "reasonable accommodation" and "undue hardship" in Barnett, the Supreme Court held that "a plaintiff/employee (to defeat a defendant/employer's motion for summary judgment) need only show that an 'accommodation' seems reasonable on its face, i.e., ordinarily or in the run of cases." Barnett, 535 U.S. at 401-402. "Once the plaintiff has made this showing, the defendant/employer then must show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances." Id. at 402.

Because a leave of absence is one of the most common and widely recognized forms of reasonable accommodation, it is a method of accommodation that is "reasonable … in the run of cases." See id. & pp. 2-3, supra; cf. Barnett, 535 U.S. at 398 (citing Garcia-Ayala).

Consistently, the case-specific aspects of a particular leave – whether it is short or long, whether the return-to-work date stays the same or changes, whether the leave may be described as "indefinite," whether the leave is consistent with or longer than those granted under the FMLA or the employer's own policies – do not render this important method of accommodation "unreasonable" (although they may be relevant to other showings under the ADA, such as the undue hardship defense).

Thus, to be entitled to the accommodation of leave, or to state a claim for failure to accommodate, the employee must show that he or she has a covered disability, and seeks a leave, which is method of accommodation that is "reasonable," and that the leave would plausibly enable the employee to recover and return to work. See Barnett, 535 U.S. at 396, 401-02; Humphrey, 239 F.3d at 1135-36.

In response to the employee's showing, the employer may seek to show, on the particular facts, the affirmative defense that the leave would impose an undue hardship. For example, in the context of a leave that has been repeatedly extended on behalf of an employee in a position requiring specialized or advanced skills, it may be difficult for the employer to complete the functions ordinarily performed by that employee through reassignments and/or the use of temporary workers. Under such facts, the employer may be able to show that extending the leave further would impose significant difficulty constituting an undue hardship.

As well, under some facts, the employer may seek to rebut the employee's showing that he or she will plausibly recover and return to work. For example, in the context of a degenerative or progressive disease that has already lead to severe and permanent functional impairment incompatible with any available positions within the employer's organization, further leave may not be a plausible means to recovery and return to work. Cf. Kimbro, 889 F.2d at 878 (in context of migraine condition characterized by acute phases followed by long periods of remission, rejecting employer's argument that further leave should not be required where there was no specific treatment available).

Thank you for your time, and for your attention to this critical issue for workers with disabilities.