Experts Give EEOC Range of Views on Leave as a Reasonable Accommodation

WASHINGTON -- At a Commission meeting today, the U.S. Equal Employment Opportunity Commission (EEOC) heard a range of views from a diverse panel of experts concerning the use of leave to provide reasonable accommodations for people with disabilities.  While the witnesses differed as to some employer and employee obligations, they agreed on the need for clear and uniform guidance from the EEOC.  The meeting, featuring representatives of employees and employers and EEOC officials, was designed to explore the use of leave.  

The Americans with Disabilities Act (ADA) requires reasonable accommodations when necessary so that people with disabilities can perform the essential functions of their jobs, unless doing so would constitute an undue hardship to the employer.  Leaves of absence—including those beyond an employer's permitted number of days off—can constitute reasonable accommodations.    

"A period of leave -- whether for medical treatment, recovery, or training to use adaptive equipment -- is often the reasonable accommodation that permits a person with a disability to remain gainfully employed," said EEOC Chair Jacqueline A. Berrien. "We welcome this opportunity to learn how this important element of the ADA affects employees and employers in practical terms."

EEOC Commissioner Victoria Lipnic said, "Managing situations where employees need leave for medical conditions is one of the most vexing issues for both employers and employees.  Today's meeting should educate employers about complying with the law and educate us at the EEOC about making these difficult situations more manageable, ultimately making us all more successful in keeping people with disabilities engaged in the workforce."

Christopher Kuczynski, EEOC Assistant Legal Counsel in charge of ADA issues, told the Commission that while many requests for leave 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, by having "no fault" leave policies.  "These must be modified as a reasonable accommodation, absent undue hardship, if an employee with a disability needs additional leave," Kuczynski said.

John Hendrickson, Regional Attorney of the EEOC's Chicago district office, offered examples of how inflexible leave policies restrict potential reasonable accommodations.  He detailed the Commission's litigation efforts in two large class cases against a national and a regional company, both of which had inflexible leave policies.  The two cases were settled by consent decrees for millions of dollars and changes to the companies' policies.

Brian East, a senior attorney with Disability Rights Texas, said, "a period of leave is one of the most important accommodations."  Numerous clients contact his office every week with employment-related issues, many of which involve leave as a reasonable accommodation. Disability Rights Texas is the designated protection and advocacy organization for people with disabilities in Texas.

Presenting the view of large employers, Ellen E. McLaughlin, a partner in the law firm Seyfarth Shaw LLP, called on the EEOC to provide "more detailed and defined examples of situations where maximum leave policies are called into question and provide examples of times when additional leave will be deemed necessary and when it will not."

McLaughlin's call for greater clarity was echoed by Edward Lee Isler, partner in the firm of Isler Dare Ray Radcliffe & Connolly P.C., which serves smaller and medium-sized employers.  He urged that the EEOC recognize in any future guidance the challenges facing smaller employers, many of which do not have spare staff or sophisticated human resource personnel.

Representing the San Francisco Legal Aid Society's Employment Law Project, Claudia Center detailed several examples of clients who lost their jobs due to lack of additional leave for a reasonable accommodation, including people with cancer, a person who needed a liver transplant, and a veteran who needed time off for treatment of combat-related post-traumatic stress disorder.

"Leaves of absence are critical for retaining countless numbers of people with disabilities within the workforce," Center said.  "At the same time, a leave of absence is not an end in and of itself.  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." 

The Commission will hold open the June 8, 2011, Commission meeting record for 15 days, and invites audience members, as well as other members of the public, to submit written comments on any issues or matters discussed at the meeting.  Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, D.C. 20507, or emailed to Commissionmeetingcomments@eeoc.gov.  All comments received will be made available to members of the Commission and to Commission staff working on the matters discussed at the meeting.   Comments will also be placed in the EEOC library for public review.  

The EEOC enforces the federal laws prohibiting employment discrimination.  More information is available at www.eeoc.gov.  Information about this meeting, including witness statements and biographies, is available at http://www.eeoc.gov/eeoc/meetings/6-8-11/index.cfm.