Navigating Employee Leave Requests
Don’t Forget the ADAAA’s Reasonable Accommodation Requirement!
On May 25, 2011, the U.S. Equal Employment Opportunity Commission’s Boston Area Office issued a press release about its filing of a consent decree resolving a complaint against ACT Teleconferencing Services, a Colorado-based provider of audio, web and video conferencing services to US and foreign companies. The EEOC complaint alleged that ACT Teleconferencing violated the ADA when it refused to extend the leave of a long-time employee seriously injured in a car accident who required an additional one month of leave. Allegedly, ACT, instead fired the employee in violation of the ADAAA.
On June 8, 2011, the EEOC held a public Commission Meeting to examine Leave as a Reasonable Accommodation. The meeting was held to consider leave as a reasonable accommodation and the impact of this type of reasonable accommodation both on employers and employees.
So, did you get the message? Leave as a reasonable accommodation is a hot topic and one that all employers should consider learning to manage and understand, if they have not already.
Very often we get calls about navigating difficult employee leave issues, and frankly, I wish we got more. (Luckily many of our clients on the HRW Labor Services Program almost always call). In Massachusetts, an employee leave situation may often implicate both state and federal laws. In fact, some of the most challenging fact patterns raised by clients require the application of the federal ADA and FMLA (Family and Medical Leave Act), in addition to both the state anti-discrimination law, M.G.L. c.151B, and the state workers’ compensation law, M.G.L. c. 152 (worker’s compensation). It is therefore not surprising that the best meaning employer may fail to understand what is required and make a mistake, for example, like failing to consider leave as a reasonable accommodation when a disabled employee may not be able to return from FMLA leave.
So what is an employer to do?
Don’t forget to consider whether leave (or additional leave following FMLA leave or workers’ compensation leave) could be a reasonable accommodation;
Educate and train employees receiving and processing leave requests about the ADAAA, FMLA, and applicable state law requirements in analyzing workplace leave requests;
Seek legal counsel if facts seem complex or if the law is confusing – a few hours of legal advice and counseling is less expensive than litigation;
Take your time and make good faith efforts to comply with the law;
The ADAAA specifically states that “the primary object of attention in cases brought under the ADA should be whether entities covered by the ADA have complied with their obligations…” So, don’t only make good faith efforts to comply if you think an employee needs leave as a reasonable accommodation – seriously consider documenting those efforts, too.
As complicated as some leave situations may seem, knowledge of the potentially applicable laws and proper attention to both the employee’s rights and the employer’s responsibilities can help employers avoid discrimination claims and make for a happier workforce.
By R. Liliana Palacios-Baldwin
If you have any questions about the information above, please contact me or another member of the HRW Team or fill out this form and we will contact you.